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CALIFORNIA 


®I|p  i£um  of 


WHAT  IS  REAL  PROPERTY. 


OWNERSHIP  AND  CONTROL  OF  REAL 
PROPERTY. 


CONTRACTS  OF  SALE  OF  REAL 
PROPERTY. 


TRANSFER  OF  REAL  PROPERTY. 


LANDLORD  AND  TENANT. 


REAL  ESTATE  AGENTS. 


Compiled  for  the  Publishers  from  the  codes 
and    decisions    of   the   Courts   by 

\A/AI_TER  GOULD  LFNCOL-N 


1913 

Published    by 

GILLESPIE'S    BOOK     STORE, 

Los   Ang-eles,   Cal. 


T 

\913 

NOTE 


The  statements  of  law  and  the  forms  as  set 
forth  herein  are  intended  for  the  state  of  Cali- 
fornia only,  and  do  not  pretend  to  conform  to 
the  law  of  any  other  state.  It  is  hoped  the 
book  will  be  found  of  much  practical  value,  and 
that  it  will  meet  the  popular  demand  for  a 
work  of  this  character. 

THE  PUBLISHERS. 


Copyright,   1913, 
by  R.  L.  Gillespie 


c 

u. 

h 


CHAPTER  I. 


WHAT  IS  REAL  PROPERTY. 


All  property  is  divided  into  two 
classes: 

1.  Real. 

2.  Personal. 

Just  when  property  is  to  be  classed  as 
real,  and  when  as  personal,  is  often  a 
very  vexatious  question.  If  it  always 
maintained  exactly  the  same  form  and 
characteristics  there  would  not  be  much 
difficulty;  but  unfortunately  it  doesn't. 

Personal  property  may  undergo  a  sud- 
den transformation  into  real  property  as 
the  result  of  the  mode  of  affixing  it  to 
land,  while  in  other  cases  it  may  still  re- 
tain its  character  as  personal  property. 

Likewise  real  property  is  readily  con- 
verted into  personal  property  because  of 
some  change  in  form  by  the  operation  of 
nature,  the  act  of  God,  or  the  desire  and 
contrivance  of  man. 

This  may  be  illustrated  with  the  case 
of  a  house,  barn,  or  shed.  When  affixed 
to  the  land  of  the  owner  it  is  in  the  eyes 
of  the  law  just  as  much  a  portion  of  the 
land  as  the   soil   itself,   and   passes   with 


4  THE  LAW  OF  REAL  ESTATE 

the  land  as  a  matter  of  course,  even  if 
not  in  any  way  mentioned  in  the  deed  or 
contract  of  sale;  but  sever  the  house,  or 
barn,  or  shed  from  the  land,  or  tear  it 
down  and  pile  it  up  on  the  land,  and  it 
immediately  becomes  personal  property. 
In  the  one  case  it  is  governed  by  one 
set  of  laws,  and  in  the  other  by  an  en- 
tirely different  set.  In  the  former,  as 
real  property,  every  contract  affecting  it, 
except  a  lease  for  one  year  or  less,  must 
be  in  writing  in  order  to  have  any  stand- 
ing in  court  as  a  legal  transaction;  in 
the  latter,  as  personal  property,  such 
contracts  need  not  necessarily  be  in 
writing,  but  are  governed  by  the  laws  af- 
fecting personal  property. 

The  troublesome  law  of  fixtures  and 
improvements,  their  ownership  and  the 
right  to  remove  them,  the  matter  of 
crops,  and  growing  things,  and  the  right 
to  harvest  them,  as  between  vendor  and 
vendee,  and  again  as  between  landlord 
and  tenant  is  involved  in  this  vexatious 
question  as  to  when  property  is  real  and 
when  personal. 

That  it  is  a  vexatious  question  and 
not  a  simple  one  is  shown  by  the  vast 
amount  of  litigation  over  it,  as  evidenced 
by  the  court   records,   the  many  contra- 


THE  LAW  OF  REAL  ESTATE  5 

dictory  decisions  in  the  different  states, 
and  the  great  amount  of  studious  thought 
and  labor  which  has  been  expended  in 
the  judicial  adjustment  of  this  subject 
by  the  most  learned  jurists  and  brightest 
intellects  of  the  world. 

In  this  article  an  endeavor  will  be 
made  to  show  as  plainly,  and  with  as 
much  certainty  as  possible,  the  estab- 
lished practice  in  this  state  for  distin- 
guishing between  property  which  is  real 
and  that  which  is  personal. 

DEFINITION  OF  REAL  PROPERTY 

By     the     Civil     Code    of    California. — 

T\Iany  definitions  of  real  property  may 
l)e  found  in  the  law  dictionaries,  but  the 
civil  code  of  this  state  furnishes  its  own 
interpretation  of  the  term.  It  declares 
that  real  property  consists  of: 

1.  Land. 

2.  That  which  is  affixed  to  land. 

3.  That  which  is  incidental  or  ap- 
purtenant to  land. 

4.  That  which  is  immovable   by   law. 

WHAT    IS   LAND 

Civil  Code  Definition. — Land  is  the 
solid  material  of  the  earth,  whatever  may 
be   the   ingredients   of  which  it   may   be 


6  THE  LAW  OF  REAL  ESTATE 

composed,  whether  soil,  rock,  or  other 
substance. 

To  What  Ownership  of  Land  Extends. 
— The  owner  of  land  has  the  right  to  the 
surface  and  to  everything  permanently 
situated  above  or  beneath  it. 

This  right  is  supposed  to  extend  down- 
ward to  the  center  of  the  earth,  and  an 
indefinite  distance  upward  toward 
heaven. 

It  is  likewise  a  doctrine  of  law  that  the 
owner  of  land  owns  also  the  air  over  it, 
and  he  is  protected  from  all  encroach- 
ments on  his  property,  even  to  the  ex- 
tent that  no  one  may  construct  any- 
thing in  any  w^ay  overhanging  the  land 
of  another;  not  so  much  as  an  eavespipe, 
cornice,  or  gutter. 

On  this  theory  all  the  atmosphere  over 
the  land  area  of  the  earth  is  held  in  pub- 
lic and  private  ownership.  Therefore  an 
aviator  passing  through  it  in  his  airship 
without  permission  is  a  trespasser,  and 
does  so  by  sufferance  of  the  owner  of  the 
underlying  realty. 

But  as  there  is  in  reality  no  such 
thing  as  absolute  ownership  in  land,  the 
degree  or  tenure  of  ownership  being  en- 
tirely a  matter  of  legislative  will  and 
enactment,  and  as  the  law  prescribes  the 


THE  LAW  OF  REAL  ESTATE  7 

conditions  of  man's  entrance  upon  the 
earth,  rules  for  his  actions  while  passing 
through  life,  and  administers  his  estate 
when  he  has  passed  on,  it  will  of  neces- 
sity modify  its  rules,  as  it  has  done  many 
times  before,  to  suit  changed  conditions 
as  they  occur. 

Therefore  it  seems  reasonable  to  in- 
fer, that  as  man  has  heretofore  given  up 
many  of  his  supposed  exclusively  per- 
sonal rights  for  the  good  of  society  in 
general,  that  he  will  be  called  upon  to 
irrant  free  passage  or  right  of  way  over 
his  real  property  to  the  airships  of  the 
world,  subject  to  proper  restrictions, 
without  compensation  therefor. 

Wireless  telegraphy  and  telephony 
form  another  instance  which  will  neces- 
sitate legislative  modification  of  the  ac- 
cepted theory  of  proprietorship  of  every- 
thing above  and  below  the  surface  by  the 
owner  of  the  land. 

Already  the  shadows  of  this  coming 
event  are  beginning  to  assume  interna- 
tional proportions;  it  is  a  serious  matter 
which  must  some  day  enlist  the  wisdom 
and  diplomacy  of  the  world  in  its  solv- 
ing. 

In  all  sal3S  and  conveyances  of  sur- 
face land  areas,  all  coal,  metals  and  min- 


8  THE  LAW  OF  REAL  ESTATE 

erals  of  every  description  below  the  sur- 
face, while  in  place,  are  regarded  as  land, 
and  constitute  part  of  the  estate  which 
passes  by  the  conveyance  without  special 
mention  thereof.  But  under  the  system 
practiced  in  the  United  States,  and  in 
this  state,  mineral  deposits  may  be  sold 
or  conveyed  by  deed  entirely  separate 
from  the  surface  rights,  or  may  be  re- 
served to  the  seller  when  he  parts  with 
the  surface. 

When  the  surface  owner  conveys  the 
coal  or  other  minerals  under  the  land, 
the  grantee  takes  the  minerals,  but  noth- 
ing else,  save  the  right  of  access  to  the 
property  for  the  purpose  of  mining  and 
removing  them.  When  the  minerals  are 
all  removed  the  grantee's  interest  ceases, 
and  the  space  the  minerals  occupied  re- 
verts back  to  the  grantor. 

Oils  and  gases  occupy  much  the  same 
position  as  water.  They  are  real  prop- 
erty only  while  in  actual  occupancy  of 
the  OAvner  of  the  surface.  They  are  us- 
ually classed  as  minerals,  and,  so  long 
as  they  remain  in  place,  are  included  in 
the  term  land.  But  they  may  escape, 
and  therefore  a  grant  of  oils  and  gases 
amounts  practically  to  only  a  license  to 
sink  wells  or   shafts    and    extract    what- 


THE  LAW  OF  REAL  ESTATE  9 

ever  quantities  of  either  may  be  found. 

Commonly,  also,  within  the  term  land 
are  included  all  houses  and  buildings 
standing  thereon,  as  well  as  all  natural 
produce  of  the  soil.  Our  code,  however, 
does  not  include  them  within  its  defini- 
tion of  land,  but  instead  treats  of  them 
as  things  affixed  to  land,  under  which 
heading  they  are  defined. 

Alluvion. — Where,  from  natural  caus- 
es, land  forms  by  imperceptible  degrees 
upon  the  bank  of  a  river  or  stream,  navi- 
gable or  not  navigable,  either  by  accum- 
ulation of  material  or  by  the  recession  of 
the  stream,  it  is  termed  alluvion,  and 
such  land  belongs  to  the  owner  of  the 
bank,  subject  to  any  existing  right  of 
way  over  the  bank. 

Avulsion. — If  a  river  or  stream,  navi- 
gable or  not  navigable,  carries  away,  by 
sudden  violence,  a  considerable  and  dis- 
tinguishable part  of  a*  bank,  and  bears 
it  to  the  opposite  bank,  or  to  another 
part  of  the  same  bank,  it  is  termed  avul- 
sion, and  the  owner  of  the  part  carried 
away  may  reclaim  it  v.dthin  a  year  after 
the  owner  of  the  land  to  which  it  has 
been  united  takes  possession  thereof. 
But  an  acquiescence  on  his  part  will  in 
time    entitle    the   owner    of  the    land    to 


10  THE  LAW  OF  REAL  ESTATE 

which  it  is  attached  to  claim  it  as  his 
own. 

Islands. — Islands  and  accumulations 
of  land,  formed  in  the  beds  of  streams 
which  are  navigable,  belong  to  the  state, 
if  there  is  no  title  or  prescription  to  the 
contrary. 

An  island,  or  an  accumulation  of  land, 
formed  in  a  stream  which  is  not  navi- 
gable, belongs  to  the  owner  of  the  shore 
on  that  side  where  the  island  accumula- 
tion is  formed ;  or,  if  not  formed  on  one 
side  only,  to  the  owners  of  the  shore  on 
the  two  sides,  divided  by  an  imaginary 
line  drawn  through  the  middle  of  the 
river. 

If  a  stream,  navigable  or  not  navi- 
gable, in  forming  itself  a  new  arm,  di- 
vides itself  and  surrounds  land  belong- 
ing to  the  owner  of  the  shore,  and  there- 
by forms  an  island,  the  island  belongs  to 
such  owner. 

Ownership  of  Overhanging  and  Line 
Trees. — Trees  whose  trunks  stand  wholly 
upon  the  land  of  one  owner  belong  ex- 
clusively to  him,  although  their  roots 
grow  into  the  land  of  another. 

If  it  be  a  fruit  tree,  the  fruit  belongs 
to  the  owner  of  the  trunk.  If  his  arms 
be    long   enough   he  can    reach  over   his 


THE   LAW   OF  REAL  ESTATE  11 

neighbor's  land  and  pluck  the  fruit,  or 
he  can  stand  on  the  fence  and  do  so.  But 
he  cannot  go  upon  the  land  of  his  neigh- 
bor for  this  purpose  without  his  permis- 
sion. If  he  did  so  he  would  be  a  tres- 
passer. 

On  the  other  hand,  the  adjacent  owner 
has  the  right  tu  lop  off  the  roots  and 
branches  of  a  tree  which  grow  into  or 
overhang  his  land  to  the  dividing  line,  or 
to  pick  up  the  fruit  which  falls  upon  his 
ground. 

A  tree  whose  trunk  happens  to  stand 
on  the  dividing  line  of  two  or  more  own- 
ers belongs  to  them  in  common.  Neither 
can  cut  it  down  without  the  other's  con- 
sent, nor  in  any  wise  mutilate  even  the 
portion  on  his  own  ground  if  the  tree 
is  injured  thereby. 

The  Right  of  Eminent  Domain. — The 
right  to  control  the  surface  of  his  land, 
as  well  as  everything  permanently  sit- 
uated above  or  below  it,  while  inviolable 
as  between  the  owner  and  his  fellow 
man,  is  qualified  by  the  superior  right  of 
the  state  to  re-assert,  either  temporarily 
or  permanently,  its  dominion  over  any 
portion  of  the  soil  of  the  state,  by  reason 
of  public  necessity,  or  for  the  public 
good. 


12  THE  LAW  OF  REAL  ESTATE 

Thus,  in  time  of  war  or  insurrection, 
the  proper  authorities  may  possess  and 
hold  any  part  of  the  territory  of  the 
state  for  the  common  safety;  and  in  time 
of  peace,  appropriation  of  the  same  may 
be  made  for  public  purposes,  such  as  the 
opening  of  roads,  for  railroads,  or  other 
channels  of  trade  or  travel,  parks  and 
public  improvements. 

It  is  the  right  Vv'hich  government  re- 
tains over  the  estates  of  individuals  to 
appropriate  or  resume  them  for  public 
use  whenever  the  public  interest  requires 
it;  for  which,  of  course,  adequate  com- 
pensation or  payment  must  be  made. 

THINGS   AFFIXED  TO   LAND 

Civil  Code  Definition. — A  thing  is 
deemed  to  be  affixed  to  land  when  it  is 
attached  to  it  by  roots,  as  in  the  case 
of  trees,  vines,  or  shrubs. 

Or  embedded  in  it,  as  in  the  case  of 
walls ; 

Or  permanently  resting  upon  it,  as  in 
the  case  of  buildings; 

Or  permanently  attached  to  what  is 
thus  permanent,  as  by  means  of  cement, 
plaster,  nails,  bolts,  or  screws. 

Growing  Trees,  Vines,  and  Shrubs. — 
Under  the  above  definition  there  can  be 


THE  LAW  OF  REAL  ESTATE  13 

no  doubt  that  trees,  both  native  to  the 
soil  or  planted,  vines  (including  alfalfa 
roots),  shrubs,  and  all  natural  products 
growing  upon  or  out  of  the  soil,  are, 
while  in  place,  part  of  the  real  property. 
Instantly  they  are  severed  from  the  land, 
however,  their  character  is  changed  from 
real  to  personal,  and  must  be  treated  as 
such. 

Likewise,  when,  upon  sale  of  the  land, 
certain  growing  trees,  vines  or  shrubs 
are  reserved  to  the  seller  in  the  convey- 
ance the  things  thus  reserved  are  there- 
by converted  into  personal  property,  and 
are  no  longer  part  of  the  real  estate,  al- 
though still  affixed  or  attached  to  the 
land.  They  belong  to  the  seller  of  the 
land,  who  may  enter  for  the  purpose  of 
caring  for  or  removing  them,  according 
to  the  terms  of  his  contract. 

Trees  and  shrubbery  grown  upon 
premises  leased  for  nursery  purposes  are 
generally  held  to  be  the  personal  prop- 
erty of  the  lessee,  subject  to  his  removal 
according  to  the  terms   of  his  lease. 

Growing  Crops. — In  the  law  diction- 
aries ''growing  crops"  are  defined  to  be 
those  annual  products  of  the  earth  which 
owe  their  existence  to  the  industry  of 
man  by  cultivation  of  the  soil,  including 


14  THE  LAW  OF  REAL  ESTATE 

all  forms  of  grain,  roots,  tubers,  etc.  In 
this  definition  all  fruits,  berries,  nuts, 
etc.,  are  excluded,  they  being  classed  as 
natural  products  of  the  earth.  To  main- 
tain such  a  distinction  could  but  lead  to 
endless  difficulties,  so  the  legislature  of 
California  declared  that  the  term  grow- 
ing crops  should  include  not  only  those 
things  which  are  the  products  of  annual 
plantings,  but  also  those  things  which 
are  the  subjects  of  annual  harvesting; 
and  our  courts,  after  much  dalliance  and 
vacillation,  have  estabished  as  the  set- 
tled policy  of  this  state  that  the  term 
embraces  in  its  scope  also  the  products 
of  our  fruit  and  nut  trees,  vines,  shrubs, 
roots  (such  as  alfalfa),  etc.,  which  are 
customarily  harvested  and  sold  as  an- 
nual crops. 

The  present  day  practice  is  to  treat 
all  growing  crops  as  personal  property 
or  chattels,  even  while  still  annexed  to 
the  soil ;  that  is,  they  may  be  bought  and 
sold,  mortgaged,  or  attached  for  debt, 
the  same  as  chattels,  at  all  times  subject 
to  the  rules  which  govern  personal  prop- 
erty, and  not  those  which  govern  real 
property. 

But,  again,  although  crops  while  at- 
tached  to  land   are   usually  regarded   as 


THE  LAW  OF  REAL  ESTATE  15 

personal  property,  yet  under  some  cir- 
cumstances they  are  held  to  be  realt}', 
and  undoubtedly  justly  so.  A  distinc- 
tion is  made  between  GROWING  crops 
and  RIPENED  crops. 

Where  the  crop  is  still  green  and  im- 
mature, unless  reserved,  it  will  pass  un- 
der a  grant  to  the  purchaser  of  the  land, 
since,  being  unfitted  at  this  stage  of  its 
growth  for  severance  from  the  soil  from 
wdiich  it  derives  its  sustenance  it  must 
be  regarded  as  inseparably  affixed  to  it, 
thus  losing  its  character  as  personal 
property  or  chattels. 

But  in  the  case  of  ripened  crops  it  is 
different.  It  is  held  that  wdien  the  crop 
has  ceased  to  draw  nutriment  from  the 
soil,  and  is  ready  for  the  harvester,  it 
can  no  longer  be  classed  as  realty  so  as 
to  pass  with  the  land,  but  it  assumes  the 
character  of  personalty,  the  fact  that  it 
rests  upon  the  land  or  upon  the  trees 
unsevered  being  of  no  consequence. 

Therefore,  it  may  be  said  that  crops 
may  be  sold,  mortgaged,  attached  for 
debt,  or  otherwise  regarded  for  all  pur- 
poses as  personal  property,  with  the  ex- 
ception that  when  immature  they  will 
pass  with  a  sale  of  the  land  as  part  of 
the  land,  unless  reserved  in  the  convey- 


16  THE  LAW  OF  REAL  ESTATE 

ance;  but  that  when  mature  they  are  to 
be  regarded  strictly  as  personal  property 
which  does  not  pass  with  the  grant,  un- 
less so  intended,  but  on  the  contrary 
may  be  garnered  by  the  seller;  for  which 
purpose  he  has  the  implied  right  to  en- 
ter upon  the  premises,  even  though  they 
have  passed  from  his  possession  and  con- 
trol. 

This  question  as  to  whether  crops  are 
real  or  personal  property  has  given  and 
continues  to  give  much  trouble;  there  is 
one  safe  way  to  avoid  all  argument  and 
dissension,  and  only  one;  and  that  is,  to 
distinctly  set  forth  in  the  contract  of  sale 
or  instrument  of  conveyance  the  real 
intentions  of  the  parties. 

Houses,  Bams,  Sheds,  and  Other 
Structures. — It  is  an  inviolable  rule  of 
law  that  everything  which  is  essential 
and  necessary  to  the  BENEFICIAL 
USE  AND  ENJOYMENT  of  land  is  to 
be  regarded  as  part  of  it,  and  passes  with 
the  conveyance,  in  the  absence  of  any 
contrary  reservation  by  the  grantor,  even 
though  the  thing  may  be  by  its  own  na- 
ture removable. 

As  between  vendor  and  vendee  this 
rule  is  strictly  enforced,  and  where  the 
matter  is  not  otherwise  affected  by  the 


THE  LAW  OF  REAL  ESTATE  17 

terms  of  the  contract  of  sale,  a  grant  of 
land,  without  any  qualifications,  conveys 
not  only  the  soil,  but  everything  at- 
tached to  it  (except,  possibly,  the 
ripened  crops),  including  all  the  build- 
ings, mines,  trees,  growing  crops,  uten- 
sils and  machinery  appertaining  to  a 
building  for  manufacturing  purposes,  gas 
pipes,  fittings,  water  pipes,  ranges  and 
boilers,  tanks,  furnaces,  heaters  and 
ovens  when  permanently  attached,  win- 
dow and  door  screens,  storm  doors,  keys, 
hop  and  bean  poles,  bee  hives,  fruit 
trays,  dryers,  etc. ;  in  general,  as  before 
stated,  whatever  the  vendor  has  annexed 
to  a  building  or  placed  upon  the  land  for 
the  more  convenient  use  thereof  and  im- 
provement of  the  premises. 

It  may  therefore  be  said  that  the  gen- 
eral rule  would  seem  to  be,  that  where 
the  annexation  of  personal  property  to 
realty  is  permanent  in  its  character,  and 
essential  to  the  purpose  for  which  the 
property  is  used  or  occupied,  it  should 
be  regarded  as  realty,  and  passes  with  a 
grant  of  the  freehold,  notwithstanding 
the  annexation  may  be  such  that  the 
chattels  might  be  severed  from  the  real- 
ty without  injury  to  either. 

Grants  are  sometimes  made  conveying 


18  THE  LAW  OF  REAL  ESTATE 

a  certain  building,  or  a  house,  without 
mentioning  the  land.  This  may  be  con- 
demned as  bad  practice;  for  while  it  is 
true  that  the  courts  have  several  times 
decided  that  the  land  upon  which  the 
building  stood,  including  as  much  more  as 
was  necessary  for  its  beneficial  enjoy- 
ment, also  passed  by  the  conveyance  of 
the  building,  still  it  leaves  opportunity 
for  controversy.  The  better  practice  is  al- 
ways to  convey  the  land,  and  then  there 
can  be  no  question  about  the  buildings 
or  improvements;  they  will  pass  with 
the  title  as  a  matter  of  right,  if  there  is 
nothing  in  the  contract  to  the  contrary. 

Entirely  Different  Rule  Applies  Be- 
tween Landlord  and  Tenant. — For  a  long 
time  it  was  very  generally  held  that 
whatever  was  once  affixed  to  realty  be- 
came a  part  thereof,  and  could  not  be  re- 
moved, no  matter  by  whom  placed  there. 
As  seen  above,  this  is  still  strictly  true 
as  BETWEEN  VENDOR  AND 
VENDEE,  upon  sale  of  the  land,  but 
the  rule  has  been  greatly  modified  as  be- 
tween LANDLORD  AND  TENANT, 
the  statutes  now  providing  for  the  re- 
moval by  the  tenant  of  such  things  as  he 
has  brought  upon  the  land  for  the  pur- 


THE  LAW  OF  REAL  ESTATE  19 

pose  of  trade,  manufacture,  or  domestic 
use. 

Thus  the  law  has  come  to  recognize  a 
species  of  property  which  is  said  to  con- 
stitute the  borderland  between  realty 
and  personalty,  partaking  sometimes  so 
much  of  the  characteristics  of  both  as  to 
make  lhe  line  between  them  hardly  dis- 
tinguishable. To  this  species  of  prop- 
erty has  been  given  the  name  ''Fixtures," 
under  which  heading  it  is  considered,  im- 
mediately following. 

FIXTURES 

Provisions  of  the  Code. — The  Civil 
Code  says : 

"When  a  person  affixes  his  property 
to  the  land  of  another,  without  an  agree- 
ment permitting  him  to  remove  it,  the 
thing  affixed  belongs  to  the  owner  of  the 
land,  unless  he  chooses  to  require  the 
former  to  remove  it." 

But  the  exigencies  of  modern  business 
have  forced  the  relaxation  of  this  rule  to 
a  marked  extent;  so  much  so  that  a  sub- 
sequently added  section  of  the  Code  de- 
clares: 

"A  tenant  may  remove  from  the  leased 
premises,  at  any  time  DURING  THE 
CONTINUANCE  OF  HIS  TERM,  any- 


20  THE  LAW  OF  REAL  ESTATE 

thing  affixed  thereto  for  purposes  of 
trade,  manufacture,  ornament,  or  do- 
mestic use,  unless  the  thing  has,  by  the 
manner  in  which  it  is  affixed,  become  an 
integral  part  of  the  premises." 

Just  what  shall  be  regarded  as  a  fix- 
ture, so  as  to  bring  it  within  the  rule 
permitting  its  removal,  is  not  always  an 
easy  matter  to  determine,  but  as  a  gen- 
eral rule  it  may  be  stated  that  most  of 
the  things  which  would  pass  with  a  deed 
of  the  land,  if  placed  on  the  land  by  the 
vendor,  may  be  removed  by  the  tenant 
as  his  personal  property  when  placed  on, 
or  attached  to,  the  realty  by  him;  the 
principal  exception  being  in  cases  where 
they  have  been  so  attached  to  the  prop- 
erty as  to  have  become  practically  a  part 
of   it. 

The  language  of  the  statute  does  not 
include  agricultural  fixtures,  but  the  rule 
of  the  American  courts  is  to  include 
them  also  in  the  classification  of  trade 
fixtures;  thus  widening  the  list  to  include 
pretty  nearly  everything  in  the  way  of 
buildings  or  structures,  machinery,  tools 
and  utensils,  store  fixtures,  etc.,  which 
the  tenant  may  remove  when  lawfully 
entitled  to. 

Intention    of     the     Parties     Principal 


THE  LAW  OF  REAL  ESTATE  21 

Thing  in  Deciding  Whether  Fixtures 
Are  Removable  or  Not. — The  intention 
of  the  parties  in  affixing  things  to  land 
or  buildings  is  the  chief  element  to  be 
considered  in  determining  their  char- 
acter; the  intention  being-  inferred  from' 
the  nature  of  the  article  affixed,  the  rela- 
tion and  interest  of  the  party  making 
the  annexation,  the  structure  and  mode 
of  annexation,  and  the  purpose  and  use 
for  which  it  has  been  made. 

If  the  intention  is  that  the  chattels 
shall  not,  by  annexation,  become  a  part 
of  the  realty,  as  a  general  rule  they  will 
not.  The  exception  is  where  the  thing 
annexed,  or  the  mode  of  annexation,  is 
such  that  it  could  not  be  removed  with- 
out practically  destroying  it,  or  where  it, 
or  part  of  it,  is  essential  to  the  support 
of  that  to  which  it  is  attached. 

It  a  tenant  build  an  addition  to  the 
house  of  his  landlord,  he  probably  could 
not  remove  it ;  but  if  the  addition  be  a 
complete  structure  in  itself,  simply  set 
up  close  to  the  house,  without  being  im- 
bedded in  the  ground,  or  otherwise  per- 
manently attached,  he  would  have  the 
right  to  remove  it. 

Mode  and  Degree  of  Attachment. — 
The  manner  in  which  a  thing  is  affixed 


22  THE  LAW  OF  REAL  ESTATE 

to  land  is  also  an  important  factor  in 
determining  whether  it  is  real  or  per- 
sonal property.  If  so  attached  that  it  be- 
comes a  permanent  and  integral  part  of 
the  realty  by  being  imbedded  in  it,  or 
fastened  to  it  so  that  it  cannot  be  re- 
moved without  MATERIAL  INJURY 
to  the  realty,  it  is  then  usually  to  be 
deemed  part  of  the  realty. 

The  mode  of  attachment  is  of  partic- 
ular moment  in  controversies  between 
landlord  and  tenant,  but  of  much  less 
importance  as  between  vendor  and 
vendee ;  for  at  best  the  only  real  value 
to  be  attached  to  the  manner  of  physical 
attachment  is  in  determining  the  purpose 
for  which  the  attachment  was  made,  and 
the  interest  of  the  party  in  making  it. 

As  before  stated,  the  rule  for  deter- 
mining what  is  a  fixture  is  construed 
stronglv  AGAINST  THE  SELLER  and 
IN  FAVOR  OF  THE  BUYER.  When 
an  owner  puts  improvements  on  his  land 
it  is  presumed  he  intends  them  to  be  per- 
manent, for  the  benefit  of  the  land;  and 
unless  he  mentions  specifically  in  the 
contract  of  sale,  or  in  the  instrument  of 
conveyance,  his  intention  to  reserve  any 
or  all  of  such  improvements,  as  a  general 
thing  they  will  pass  with  the  land,  and 


THE  LAW  OF  REAL  ESTATE  23 

he  is  likely  to  have  a  very  considerable 
trouble   in  proving  otherwise. 

But  as  between  landlord  and  tenant  an 
entirely  different  rule  prevails.  Here  the 
benefit  of  the  doubt  is  all  IN  FAVOR 
OF  THE  TENANT  as  AGAINST  THE 
LANDLORD.  It  is  not  to  be  presumed 
that  the  -.lenant  intends  the  improve- 
ments which  he  makes  to  be  for  the  ben- 
efit of  his  landlord ;  on  the  contrary,  it  is 
to  be  presumed  he  makes  them  strictly 
for  his  own  benefit. 

Still,  there  is  no  unvarying  test;  and 
neither  the  mode  of  annexation,  nor  the 
purpose  of  the  improvements,  can  ever 
be  said  to  be  entirely  conclusive,  the  ex- 
press or  implied  understanding  of  the 
parties  being  more  usually  the  pivot  on 
which  the  decision  hinges.  But  as  a 
general  principle,  in  the  absence  of  any 
contract  or  agreement  to  the  contrary,  it 
may  be  said  that  what  a  tenant  affixes  to 
leased  premises  may  be  removed  by  him 
at  any  time  DURING  HIS  TERM,  if  he 
can  do  so  without  material  injury  to  the 
realty. 

Only  One  Safe  Way  to  Be  Sure.— 
Where  there  is  such  an  open  field  for 
controversy  as  there  is  on  this  subject 
of  what  constitutes  fixtures,  or  things  af- 


24  THE  LAW  OF  REAL  ESTATE 

fixed  to  land;  when  they  are  to  be 
classed  as  real  and  when  as  personal 
property;  when  they  are  removable  and 
when  irremovable;  and  where  there 
might  be  much  difficulty  in  proving  the 
real  intentions  of  the  parties,  the  only 
sane  thing  to  do  is  to  have  a  thorough 
understanding  beforehand. 

In  case  of  a  sale  of  the  land,  enumer- 
ate everything  which  goes  with  it,  and 
likewise  everything  which  is  to  be  re- 
served. 

In  case  of  a  lease,  put  in  the  instru- 
ment how  all  fixtures  and  improvements 
belonging  to  or  erected  by  the  tenant  are 
to  be  attached  to  the  land,  and  when  and 
how  removed. 

Always  remembering  that  parties  to 
an  agreement  may  fix  upon  chattels  at- 
tached to  realty  whatever  character  may 
be  agreed  upon,  either  real  or  personal, 
and  whatever  may  be  their  agreement 
the  courts  will  enforce,  it  having  been 
decided  many  times  that  fixtures  or 
structures  of  any  sort  when  placed  on 
leased  premises,  under  an  agreement  for 
removal,  in  such  manner  as  not  to  be- 
come permanently  attached  thereto,  do 
not  pass  to  a  subsequent  purchaser  of 
the  land. 


THE  LAW  OF  REAL  ESTATE  25 

THINGS  APPURTENANT  TO  LAND 

Civil  Code  Definition. — A  thing  is 
deemed  to  be  incidental  or  appurtenant 
to  land  when  it  is  by  right  used  with  the 
land  for  its  benefit,  as  in  the  case  of  a 
way,  or  watercourse,  or  of  a  passage  for 
light,  air,  or  heat  from  or  across  the  land 
of  another. 

Other'  'examples  of  ap:)urtenances  are 
building  restrictions,  to  l)uild  or  not  to 
build  fences,  to  set  buildings  back  cer- 
tain distance  from  front  line,  restricting 
use  of  premises,  water  rights,  rights  of 
way,  franchises,  right  to  cut  timber,  to 
fish  or  hunt,  etc. 

Such  incidentals  may  be  either  tem- 
porary or  permanent  in  their  nature. 
When  permanently  attached  to  land,  as 
by  right,  they  are  called  easements,  or 
covenants  which  run  with  the  land.  Thus 
they  become  burdens  affecting  lands,  by 
which  the  proprietor  is  restrained  from 
the  full  use  of  his  property,  or  is  obliged 
to  suffer  others  to  do  acts  upon   it. 

How  Easements  Are  Acquired. — An 
easement,  when  created  by  a  writing, 
can  be  acquired  only  by  means  of  a  for- 
mal deed  or  grant.  There  must  be  ex- 
press  words   creating     and     establishing 


26  THE  LAW  OF  REAL,  ESTATE 

the  right  sought  to  be  conveyed.  At- 
tempts are  sometimes  made  to  create  an 
easement  by  means  of  a  consent  in  writ- 
ing, other  than  a  formal  conveyance,  but 
such  an  instrument  is  of  no  more  avail 
than  a  verbal  agreement  would  be. 

Easements  are  also  sometimes  ac- 
quired by  custom.  Thus,  the  inhabitants 
of  a  certain  locality  may  acquire  a  right 
of  way  over  a  parcel  of  land  by  custom, 
and  when  such  right  is  undisputed  for  a 
sufficient  length  of  time  it  becomes  a 
prescriptive  right,  similar  to  the  right 
popularly  known  as  "squatter  sovereign- 
ty," which  the  proprietor  of  the  land 
would  probably  find  considerable  trouble 
in  annulling,  if  he  so  desired,  if,  indeed, 
he  could  succeed  in   doing  so  at  all. 

Easements,  therefore,  being  an  interest 
in  land,  come  within  the  code  definition 
of  what  constitutes  real  property,  and 
when  the  title  is  transferred  pass  with  it 
without  special  mention. 


CHAPTER  II. 


OWNERSHIP  AND  CONTROL 
OF  REAL  PROPERTY 


The  laws  governing  the  ownership 
and  control  of  property  in  California  are 
not  generally  well  understood.  There 
are  probably  two  main  reasons  why  this 
is  so.  The  first  is,  that  there  are  so 
many  newcomers  to  the  state;  the  sec- 
ond is,  that  it  is  the  custom  to  join  both 
husband  and  wife  in  real  estate  trans- 
fers, whether  so  required  by  law  or  not. 
This  leads  the  public  to  the  conclusion 
that  each  has  some  lawful  interest  in  the 
property  of  the  other.  Such,  however, 
is  not  the  case,  which  this  article  will  at- 
tempt to  make  clear,  and  show  as  well 
their  true  relationship  in  this  respect. 

PROPERTY  RIGHTS  OF  HUSBAND 
AND  WIFE 

Language  of  the  Law. — The  five  sec- 
tions which  immediately  follow  are  in 
the  exact  language  of  the  civil  code : 


28  THE  LAW  OF  REAL  ESTATE 

What  is  Separate  Property  of  the  Hus- 
band.— All  property  owned  by  the  hus- 
band before  marriage,  and  that  acquired 
afterwards  by  gift,  bequest,  devise  or 
descent,  with  the  rents,  issues,  and  pro- 
fits thereof,  IS  HIS  SEPARATE  PROP- 
ERTY. 

What  is  Separate  Property  of  the 
Wife. — All  property  of  the  wife,  owned 
by  her  before  marriage,  and  that  ac- 
quired afterwards  by  gift,  bequest,  de- 
vise, or  descent,  with  the  rents,  issues, 
and  profits  thereof,  IS  HER  SEPAR- 
ATE PROPERTY. 

The  wife  may,  WITHOUT  THE 
CONSENT  OF  HER  HUSBAND,  con- 
vey her  separate  property. 

Neither  Has  Interest  in  Property  of 
Other. — Neither  husband  nor  wife  has 
ANY  INTEREST  in  the  property  of  the 
other. 

Husband  and  Wife  May  Contract  with 
Each  Other,  or  with  Others,  Same  as  if 
Unmarried. — Either  husband  or  wife  may 
enter  into  any  engagement  or  transac- 
tion with  the  other,  or  with  any  other 
person,  respecting  property,  which  either 
might,  if  unmarried. 

No  Courtesy  or  Dower. — No  estate  is 
allowed  the  husband  as  tenant  by  cour- 


THE  LAW  OP  REAL  ESTATE  29 

tesy  upon  the  death  of  his  wife,  nor  is 
any  estate  in  dower  allotted  to  the  wife 
upon  the  death  of  her  husband. 

Tells  the  Whole  Story.— The  five  sec- 
tions of  the  code  quoted  above  tell  prac- 
tically the  whole  story  of  property  rights 
as  between  husband  and  wife,  with  the 
exception  of  community  rights,  which 
are  shown  under  the  next  heading  be- 
low. 

Further  interpreted,  they  mean  that 
all  the  property  possessed  by  either  hus- 
band or  wife  before  marriage,  and  all 
that  acquired  afterwards  by  either  as  the 
profits  thereof,  or  with  their  separate 
funds,  or  by  gift  or  inheritance,  remains 
and  continues  to  be  his  or  her  sole  pos- 
session, the  same  as  if  they  were  un- 
married. And  neither  while  living,  nor 
after  death,  has  either  any  claim,  right, 
or  legal  interest  whatsoever  in  what  be- 
longs to  the  other;  with  the  single  pro- 
viso that,  after  death,  in  the  absence  of  a 
will  otherwise  disposing  of  it,  either  is 
entitled  to  a  share  in  the  property  of  the 
other  by  right  of  succession. 

Likewise,  the  husband  or  wife  has  each 
ABSOLUTE  CONTROL  over  his  or 
her  separate  property.  Either  may,  with- 
out the  consent  of  the  other,  enter  into 


30  THE  LAW  OF  REAL  ESTATE 

a  contract  of  sale,  rent,  mortgage,  or  con- 
vey any  or  all  of  the  same,  or  dispose  of 
it  by  will  or  gift,  with  the  like  effect  as 
if  they  were  single  persons. 

They  may  buy  from,  or  sell  to,  or  con- 
vey by  gift  to,  each  other,  the  same  as 
with  other  persons. 

But  neither  can  make  any  valid  con- 
tract respecting  the  property  of  the 
other,  or  convey  the  same,  without  first 
being  duly  authorized  so  to  do  in  writ- 
ing, or  by  power  of  attorney. 

COMMUNITY  PROPERTY 

Definition. — Except  the  property  de- 
scribed above  as  the  separate  property 
of  husband  or  wife,  all  other  property 
acquired  after  marriage  by  either  hus- 
band or  wife,  or  both,  is  community 
property. 

Management  and  Control  of  Com- 
munity Property. — The  husband  has  the 
management  and  control  of  the  com- 
munity property,  free  from  all  restraint 
of  the  wife,  or  necessity  of  obtaining 
her  consent  to  his  acts.  He  is  vested 
with  discretionary  power  in  all  matters 
appertaining  thereto,  and  can  sell,  con- 
vey, or  encumber  the  same  without  the 
consent  of  the  wife,  regardless  of  her  de- 


THE  LAW  OF  REAL  ESTATE  31 

sires,  or  of  such  interest  as  she  may 
have. 

But  while  the  husband  possesses  the 
right  of  absolute  freedom  of  control  and 
alienation  of  the  community  property, 
he  is  not  allowed  to  commit  FRAUD  on 
the  wife,  and  all  his  acts  must  be  in 
good  faith,  and  not  for  the  purpose  of 
divesting  or  injuring  her;  therefore  he 
cannot  will  away  other  than  his  interest, 
or  make  a  gift  of  it,  or  convey  it  without 
a  valuable  consideration,  while  she  is  liv- 
ing, without  her  consent,  in  writing, 
first  obtained. 

The  wife  has  no  right  whatsoever  to 
sell,  or  to  contract  to  sell,  or  otherwise 
dispose  of  any  species  of  community 
property,  and  a  purchaser  from  her  takes 
no  title  as  against  the  husband. 

CONVEYANCE  OF  SEPARATE  AND 
COMMUNITY  PROPERTY 
Why  Purchasers  Require  Signatures 
of  Both  Husband  and  Wife. — In  view  of 
the  fact  that  the  husband  and  wife  each 
have  absolute  control  over  their  separate 
property,  with  power  to  convey  the 
same,  and  the  husband  has  sole  control 
over  the  community  property,  with  like 
power  to  convey  it,  the  question  natur- 


32  THE  LAW  OF  REAL  ESTATE 

ally  arises:  Why  is  it  necessary,  then, 
to  have  the  signatures  of  BOTH  hus- 
band and  wife  to  a  grant  or  deed?  The 
answer  is:  It  is  NOT  necessary,  in  a 
legal  sense.  Each  may  sell,  convey, 
lease,  or  encumber  without  the  consent 
of  the  other,  and  the  signature  of  the 
one  in  whose  name  the  title  stands  is 
sufficient  in  law. 

But,  the  reader  replies,  the  purchaser 
always  demands  the  signatures  of  both 
husband  and  wife  to  the  instrument. 
That  is  practically  true,  and  the  reason 
is  that  it  is  a  matter  of  prudence  and  not 
of  law.  The  presumption  is  that  prop- 
erty standing  in  the  name  of  the  wife  is 
her  separate  property,  but  even  this  pre- 
sumption may  be  attacked  by  creditors 
or  others  on  the  ground  that  the  title 
was  vested  in  her  for  fraudulent  reasons; 
but  where  the  title  stands  in  the  name 
of  the  husband  it  is  not  possible  to  tell 
from  that  mere  fact  just  what  his  inter- 
est is,  or  whether  his  conveyance  of  it  is 
in  good  faith. 

Nobody  cares  to  purchase  trouble  or 
possible  law  suits.  Therefore,  and  for 
the  reasons  given,  the  prudent  purchaser 
demands  the  signatures  of  both  husband 
and  wife   to   a  conveyance   by   either  of 


THE  LAW  OF  REAL  ESTATE  33 

them ;  for  when  both  signatures  are  at- 
tached thereto  there  is  no  opportunity 
for  dispute  or  controversy  as  to  the  own- 
ership, and  the  right  and  justice  and  ab- 
sence of  fraud  in  the  encumbrance  or 
disposal,  or  the  consent  of  both  parties 
to  the  same. 

If.  however,  the  purchaser  is  satisfied 
that  the  property  is  the  rightful  pos- 
session of  the  person  seeking  to  dispose 
of  it,  he  is  entirely  justified  in  accepting 
the  sole  signature  of  such  person  to  the 
conveyance.  Then,  if  he  chooses,  he 
may  bring  an  action  in  the  courts  to 
quiet  his  title,  and,  if  judgment  be  ren- 
dered in  his  favor,  his  right  of  possession 
will  be  clear  and  complete. 

HOLDING  PROPERTY  AS  JOINT 
TENANTS 

Permissible  by  Law,  but  Not  so  Com- 
monly Employed. — There  is  another 
method  by  which  property  may  be  held 
by  husband  and  wife,  or  by  two  or  more 
other  parties.  This  is  known  as  a  joint 
tenancy,  and  the  parties  are  known  as 
joint  tenants. 

In  a  joint  tenancy,  the  conveyance  is 
made  to  and  in  the  names  of  both  the 
husband  and  wife,  or  of  all  the  parties 


34  THE  LAW  OF  REAL  ESTATE 

who  share  therein,  and  each  one  holds 
an  equal  share.  Each  tenant  can  con- 
vey his  interest  separately,  by  his  own 
signature,  but  the  whole  can  be  conveyed 
only  with  the  consent  and  signatures  of 
all  the  tenants.  For  form  of  deed,  and 
further  explanation  of  joint  tenancies, 
the  reader  is  referred  to  the  subject  of 
"Deeds." 

Power  of  Attorney  by  Married  Wom- 
an.— A  married  woman  may  make,  exe- 
cute, and  revoke  powers  of  attorney  for 
the  sale,  conveyance,  or  encumbrance  of 
her  real  property,  with  the  same  effect 
as  if  she  were  unmarried. 

The  husband  may,  by  power  of  at- 
torney, be  constituted  attorney  in  fact 
for  the  wife,  to  transact  business  for  her 
and  in  her  name. 


CHAPTER  III. 


CONTRACTS  OF  SALE  OF 
REAL  PROPERTY 


Having  shown  in  the  two  previous 
chapters  what  constitutes  real  property 
according  to  the  laws  of  California,  and 
also  how  it  is  owned  and  controlled,  we 
VvhU  show  in  this  article  the  legal  formal- 
ities necessary  to  be  observed  in  the 
making  of  valid  contracts  or  agreements 
of  sale,  and  in  the  succeeding  article  the 
manner  and  methods  of  alienation,  or 
voluntary  transfer  from  one  person  to 
another,  for  a  consideration,  in  conform- 
ity with  the  laws  of  the  state  for  that 
purpose  provided. 

AGREEMENTS  OF  SALE  AND  PUR- 
CHASE 
Definitions. — Where  title  to  property 
is  acquired  by  purchase  the  transaction 
is  naturally  the  result  of  previous  nego- 
tiation or  agreement  on  the  part  of  the 
purchaser  to  take  the  property  upon  the 


36  THE  LAW  OF  REAL  ESTATE 

agreed  terms,  and  of  the  owner  to  sell 
and  convey  the  same  for  the  stated  con- 
sideration. 

The  civil  code  defines  a  sale  to  be  a 
contract  by  which,  for  a  pecuniary  con- 
sideration called  a  price,  one  transfers 
property,  or  an  interest  in  property,  to 
another. 

An  agreement  to  sell  is  a  contract  by 
which  one  engages,  for  a  price,  to  trans- 
fer the  title  to  property  to  another. 

The  distinction  between  a  sale  and  an 
agreement  for  sale  is  this :  In  the  for- 
mer, the  thing  which  is  the  subject  of 
contract  becomes  the  property  of  the 
buyer  as  soon  as  the  contract  is  con- 
cluded; in  the  latter,  it  remains  the 
property  of  the  seller  until  the  buyer  has 
completed  the  terms  of  the  contract.  In 
the  former  case,  one  sells  outright  to 
another;  in  the  latter,  he  only  promises 
to  sell  when  certain  conditions  are  ful- 
filled. 

An  agreement  to  buy  is  a  contract  by 
which  one  engages  to  accept  certain  de- 
scribed property  from  another,  and  pay 
a  price  therefor. 

An  agreement  to  sell  and  buy  is  a 
contract  by  which  one  person  engages  to 
transfer  the  title  to  certain   property  to 


THE  LAW  OF  REAL  ESTATE  37 

another,  who  engages  to  accept  the  same 
and  pay  a  price  therefor. 

Every  Contract  for  the  Sale  or  Pur- 
chase of    Land    Must    Be   in    Writing. — 

Contracts  for  the  purchase  and  sale  of 
land  are  in  their  nature  executory;  that 
is,  they  do  not  vest  any  present  title,  or 
convey  any  interest  in  the  land,  but  are 
simply  agreements  to  convey  at  some 
future  time,  upon  the  fulfillment  of  the 
conditions   contained  in   the   contract. 

Conveyance  seldom  immediately  fol- 
lows the  making  of  the  agreement.  If  it 
did,  contracts  of  sale  and  purchase  would 
seldom  be  necessary.  But  in  the  passing 
of  title  to  real  property  much  care  is  re- 
quired to  ascertain  that  the  claim  of 
OAvnership  by  the  grantor,  or  seller,  is 
clear;  that  is,  that  no  others  have  any 
claim  upon  it.  This  makes  it  necessary 
to  search  the  public  records,  which  is 
a  somewhat  tedious  process  requiring 
considerable  time.  For  this  reason  it  is 
customary,  when  a  purchaser  has  been 
found  for  a  piece  of  property,  for  the 
seller  and  the  buyer  to  sign  an  agree- 
ment, binding  the  one  to  convey,  and 
the  other  to  purchase,  upon  a  satisfactory 
certificate  of  title  being  furnished.  Such 
contract  binds  the  parties   firmly   to   the 


38  THE  LAW  OF  REAL  ESTATE 

agreement  in  the  interval,  while  the 
search  is  being  made,  and  also  compels 
them  to  consummate  the  deal,  if  the  ex- 
amination proves  the  title  to  be  as  rep- 
resented. 

Such  contracts  are,  of  course,  not 
compulsory  or  necessary,  in  a  legal 
sense,  to  the  transfer  of  property,  if  the 
parties  are  satisfied  to  rely  on  an  oral 
agreement.  But  AN  ORAL  AGREE- 
MENT CANNOT  BE  ENFORCED. 
There  is  a  law  of  the  state  known  as  the 
"Statute  of  Frauds,"  which  says  that  no 
agreement  for  the  sale  of  real  property, 
or  of  any  interest  therein  (including  the 
buildings,  trees,  timber,  or  any  of  the 
things  coming  under  the  definition  of 
real  property,  as  set  forth  in  the  first 
chapter  of  this  book),  shall  be  valid  un- 
less the  same,  or  some  note  or  memo- 
randum thereof,  IS  IN  WRITING,  and 
subscribed  by  the  party  to  be  charged, 
or  by  his  agent. 

There  is  no  e\ading  or  getting  around 
this  law.  It  is  imperative.  The  agree- 
ment of  sale  or  purchase  must  positively 
and  unequivocally  be  in  writing  in  order 
to  have  any  standing  in  court.  The  great 
purpose  of  the  statute  of  frauds  is  to  af- 
ford  protection   against   frauds  and   per- 


THE  LAW  OF  REAL  ESTATE  39 

juries,  and  this  it  effects  by  providing 
that  mere  oral  proof  of  such  contracts 
shall  not  be  sufficient  to  establish  them 
in  a  court  of  justice.  An  oral  contract 
is  all  right  so  long  as  the  parties  carry 
out  its  terms,  and  no  one  suffers  or  is 
injured  thereby;  but  if  there  were  no 
written  memorandum  of  the  bargain,  it 
would  be  possible  for  either  party  to 
decline  to  fulfill  his  part  of  the  agree- 
ment, and  the  other  party  would  be  pow- 
erless to  enforce  it.  It  is  for  this  reason 
that  the  law  prescribes  a  weapon  for  the 
enforcement  of  legitimate  contracts,  as 
well  as  for  the  prevention  of  fraud,  due 
to  frailties  of  the  memory  from  lapse  of 
time,  perjury,  etc.,  by  providing  that  no 
relief  can  be  obtained  in  a  court  of  jus- 
tice, by  an  action  at  law,  if  the  other 
party  sets  up  the  defense  that  the  agree- 
ment upon  which  the  action  was  brought 
was  not  in  wTiting. 

Exception  to  Above. — Notwithstanding 
the  fact  that  the  law  requires  all  con- 
tracts for  the  sale  of  real  property  to  be 
in  writing,  there  are  cases  in  which  an 
oral  bargain  can  be  enforced.  This 
might  seem  to  be  an  evasion  or  over- 
throw of  the  statute  itself;  but  In  reality 
it  is  not;  it  being,  rather,  a  further  pre- 


40  THE  LAW  OF  REAL  ESTATE 

caution  for  the  prevention  of  fraud. 
It  has  long  been  the  settled  doctrine, 
and  is  now  incorporated  in  the  statute 
iiself,  that  an  oral  contract  for  the  con- 
veyance of  lands  will  be  enforced  by  the 
courts  in  cases  where  the  contract  has 
been  PARTLY  PERFORMED,  to  such 
an  extent  that  a  refusal  on  the  part  of 
the  seller  to  fully  carry  out  its  provi- 
sions would  work  a  hardship  or  fraud 
upon  the  buyer.  As  for  instance:  Jones 
agrees  verbally  to  sell  his  ranch  to 
Brown,  who,  while  waiting  for  the  ab- 
stract, takes  possession  with  Jones'  per- 
mission, and  proceeds  to  make  improve- 
ments, or  cultivate  the  soil.  Before  the 
deed  is  ready  for  delivery  Jones  gets  a 
bigger  offer  for  his  land,  which  he  would 
like  to  accept.  But  he  would  not  be  per- 
mitted to  withdraw  or  cancel  his  agree- 
ment of  sale  to  Brown,  on  the  ground 
that  the  contract  of  sale  was  not  in  writ- 
ing, for  the  reason  that  he  has  permitted 
Brown  to  proceed  in  good  faith  to  oc- 
cupy the  premises  in  execution  of  the 
agreement ;  and  the  very  fact  that  he 
transferred  the  possession  to  Brown 
would  be  considered  such  evidence  of 
the  agreement  of  purchase,  and  the  in- 
tended   transfer,    that    the  courts    would 


THE  LAW  OF  REAL  ESTATE  41 

recognize  the  transaction,  and  most 
probably  compel  its  full  performance.  To 
do  otherwise  would  be  a  manifest  injus- 
tice and  fraud  upon  the  purchaser,  which 
the  statute  is  designed  primarily  to  pre- 
vent, and  would  also  put  him  in  the 
anomalous  position  of  a  trespasser. 

If,  however.  Brown  took  possession 
v^'ithout  Jones'  consent,  the  case  would 
be  entirely  different ;  he  would  have  no 
rights  under  the  oral  agreement  which 
the  courts  would  be  bound  to  enforce. 

But  part  payment  of  the  purchase 
money  is  not  in  itself  regarded  as  suffi- 
cient evidence  or  reason  for  enforcing 
the  performance  of  a  verbal  contract. 
Courts  probably  once  did  act  on  such 
evidence,  and  compel  the  seller  to  per- 
form his  agreement.  Experience  proved 
this  to  be  a  dangerous  practice,  how- 
ever, and  it  has  been  abandoned.  Now% 
in  case  of  a  hitch  in  the  negotiations, 
where  the  contract  is  verbal,  instead  of 
compelling  the  seller  to  fulfill  his  con- 
tract by  giving  a  deed,  it  is  the  custom 
to  require  him  to  refund  the  monev 
given   as   part  payment,  or  as   a   deposit. 

Like  most  other  difficulties  arising 
from  carelessness  or  negligence,  troubles 
of  this  kind  are  easily  avoided  by  com- 


42  THE  LAW  OF  REAL  ESTATE 

plying  with  the  terms  of  the  law :  Put 
the  contract,  with  all  its  details,  in  writ- 
ing. 

Authority  of  Agent  of  Owner  Must 
Also  Be  in  Writing. — Whenever  the 
owner  of  real  property  delegates  author- 
ity to  an  agent  to  make  a  contract  for 
the  sale  of  such  property,  THE 
AGENT'S  AUTHORITY  MUST  ALSO 
BE  IX  WRITING,  signed  by  the  own- 
er. This  is  likewise  one  of  the  most  im- 
portant provisions  of  the  Statute  of 
Frauds,  and  unless  it  be  strictly  ob- 
served, any  contract  made  by  the  agent 
would  have  no  binding  effect  upon  either 
the  owner  or  the  purchaser.  This  fea- 
ture of  the  law  is  a  very  important  one, 
and  its  neglect  is  the  cause  of  many 
wrangles  and  much  litigation.  It  is  fur- 
ther explained  in  detail  in  the  chapter  on 
''Real  Estate  Agents." 

Contract  of  Sale  by  Corporation. — 
The  powers  of  a  corporation,  and  the 
control  of  its  property,  can  be  exercised 
only  by  its  board  of  directors.  Its  offi- 
cers, as  such,  have  no  power  to  dispose 
of  its  property,  or  of  any  interest  there- 
in. Therefore,  everv  contract  for  the 
sale  of  real  estate  by  a  corporation  must 
first  be  authorized  by  its  board  of  direct- 


THE  LAW  OF  REAL  ESTATE  43 

ors,  at  a  meeting  thereof  duly  and  legal- 
ly convened.  Some  forms  of  such  con- 
tracts state  in  the  agreement  of  sale  that 
it  is  made  in  pursuance  of  a  resolution  of 
the  board  of  directors,  duly  held  at  such 
and  such  a  date;  and  sometimes,  also, 
the  words  of  the  resolution  itself  are  in- 
serted. 

It  is  not  necessary,  however,  that 
every  individual  contract  by  a  corpora- 
tion handling  real  estate  shall  be  separ- 
ately authorized  by  resolution.  In  such 
cases,  it  is  customary  for  the  board  of 
directors  to  pass  a  blanket  resolution, 
authorizing  the  president  and  secretary, 
or  other  officers,  to  make  contracts  of 
sale  and  conveyances,  for  and  in  the 
name  of  the  corporation.  This  answers 
ilie  same  purpose,  and  contracts  made  in 
{Hirsuance  thereof  have  legal  force  and 
elYect. 

Contract  of  Sale  by  Minor. — A  minor 
cannot,  under  the  age  of  eighteen,  make 
any  valid  contract  relating  to  any  inter- 
est in  real  property. 

The  contract  of  a  minor  over  the  age 
of  eighteen  is  not  void,  but  is  voidable ; 
that  is,  he  may  disaffirm  or  repudiate  it 
at  any  time  before  majority,  or  within 
a  reasonable  time  thereafter. 


44  THE  LAW  OF  REAL  ESTATE 

A  minor  cannot  delegate  authority  to 
another  person  to  do  what  he  is  himself 
forbidden  to  do. 

Contract  of  Sale  of  Wife's  Property  by 
Husband. — The  husband  seems  pretty 
often  to  take  it  for  granted  that  he  has 
the  right  to  make  a  contract  of  sale  of 
property  which  stands  in  his  wife's 
name,  without  further  authority.  He  has 
no  such  right,  and  if  she  refuses  to  carry 
out  the  contract  trouble  is  almost  sure 
to  result  over  commissions,  etc.  A  con- 
tract of  sale  should  always  be  signed  by 
the  person  in  whose  name  the  title 
stands,  or  by  an  authorized  agent. 

Power  of  Attorney  to  Execute  Con- 
tract of  Sale  Not  Necessary. — Authority 
to  execute  a  contract  of  sale  of  real  prop- 
erty may  be  delegated  to  an  agent  by 
any  form  of  simple  writing  authorizing 
him  to  make  such  contract,  and  a  power 
of  attorney  is  not  necessary  for  the  pur- 
pose. But,  as  previously  stated,  such 
contract  does  not  convey  the  property, 
or  any  interest  therein,  or  authorize  the 
agent  to  convey  it.  The  actual  transfer 
can  be  made  only  by  a  grant  deed,  and 
authority  from  the  owner  to  another  per- 
son to  execute  such  deed  in  his  behalf 
can  be  given  only  by  means  of  a  formal 


THE  LAW  OF  REAL  ESTATE  45 

power  of  attorney;  for  farther  details  of 
Avhich,  and  necessary  forms,  see  chapter 
or:  "Transfer  of  Real  Property." 

Construction  of  the  Contract  of  Sale. — 
The  mere  form  or  language  of  the  con- 
tract of  sale  is  immaterial.  It  may  be  in 
the  shape  of  letters,  or  telegrams,  or  of 
a  formally  drawn  instrument ;  or  it  may 
be  in  the  shape  of  just  simply  notes  or 
memorandum  of  the  deal.  What  is  very 
important,  however,  is  that  there  must 
be  a  direct  and  positive  offer  to  sell,  and 
not  a  mere  negotiation ;  also,  that  the 
terms  of  the  bargain  can  be  definitely 
ascertained  from  the  writing,  in  what- 
ever form  it  is,  and  that  the  property  in- 
volved in  the  deal  be  described  accur- 
ately enough  to  identify  it  without  mis- 
take. Above  all,  the  one  indispensal)le 
requisite  is  that  the  oft'er  or  agreement 
must  be  IN  WRITING,  and  signed  by 
the  vendor,  or  by  his  authorized  agent, 
whether  it  be  drawn  up  with  legal  form- 
ality, or  in  the  form  of  letters,  or  simply 
notes  or  memorandum  of  the  transac- 
tion. 

If  the  property  is  located  in  a  city  or 
town,  it  is  a  sufficient  description  of  it 
to  refer  to  the  street  and  number,  or  to 


46  THE  LAW  OF  REAL  ESTATE 

the  number  of  the  lot  and  the  name  of 
the  tract. 

Country  property  may  be  referred  to 
by  its  popular  name,  as  the  ''Higgins 
ranch,"  or  other  appellation,  if  it  has 
one,  instead  of  giving  the  description  by 
measurements. 

Use  of  the  Forms. — In  making  use  (^f 
tjie  forms  which  follow,  care  should  be 
taken,  where  there  is  more  than  one 
owner,  or  the  owner  is  of  the  female 
sex,  or  the  contract  is  to  be  signed  by 
both  husband  and  wife,  to  change  the 
nouns,  pronouns,  and  verbs  to  corre- 
spond, where  necessary.  The  parenthe- 
ses 0  are  used  to  indicate  the  portions 
of  the  forms  which  should  be  changed  to 
meet  the  requirements  of  the  transac- 
tion in  hand,  such  as  description  of  the 
property,  terms  of  the  sale,  date  lines, 
county  and  state,  names  of  seller  and 
buyer,  etc.  Otherwise  the  forms  are  in 
everywise  complete,  and  meet  all  the  re- 
quirements of  the  law. 

Form  of  Contract  of  Sale  and  Pur- 
chase.— The  most  popular  form  of  con- 
tract for  the  sale  of  real  property  now 
in  use  is  in  the  shape  of  an  agreement 
upon  the  part  of  the  owner  to  sell,  and 
of  the  prospective   customer  to  buy,   in- 


THE  LAW  OF  REAL  ESTATE  47 

corporated  into  one  instrument,  several 
very  good  examples  of  which  are  given 
below.  If  a  separate  offer  to  sell,  or  a 
separate  offer  to  buy,  is  wanted,  it  is  a 
simple  matter  to  make  it  up  by  follow- 
ing the  general  language  of  the  forms  as 
given. 

AGREEMENT      FOR      THE      SALE      OF      REAL 
ESTATE,    FOR    CASH 

THIS  AGREETVIENT,  made  this  (first  day  of 
May,  in  tlie  year  nineteen  hundred  and  fifty), 
bet-»veen  (Harold  Howard,  of  the  county  of 
Orange,  state  of  California),  tlie  party  of  the 
first  i>art,  and  (Henry  Howson,  of  the  county 
of  Riverside,  state  of  California),  the  party  of 
the  second  part,  T\itne»seth:  That  the  said  party 
of  the  first  part,  for  and  in  consideration  of 
the  covenants  and  aj^reenients  hereinafter  con- 
tained and  made  by  and  oii  the  part  of  the 
party  of  the  second  part,  agrees  to  sell  and 
convey  unto  the  !«aid  party  of  the  second  part, 
and  the  said  party  of  the  second  part  agrees 
to  buy,  all  that  certain  lot,  piece,  or  parcel  of 
land,  situate,  lying  and  being  in  the  county  of 
(Orange,  state  of  California),  and  bounded  and 
particularly     described     as     follo'tvs,     to-T»'!t: 

(Here  describe  the  property,  same  as  in  the 
deed),  for  the  sum  of  (t-wenty  thousand  dol- 
lars) in  gold  coin  of  the  United  States;  and  the 
said  party  of  the  second  part,  in  consideration 
of  the  premises,  agrees  to  buy  and  to  pay  to 
the  said  party  of  the  first  part  the  said  sum  of 
(twenty  thousand  dollars),  as  follows,  to-wit: 
(One  thousand  dollars  cash),  receipt  of  which 
is  iiereby  acknowledged,  and  (nineteen  thousand 
dollars,  or  so  much  cash  and  other  property,  as 
the  case  may  be),  on  delivery  by  the  party  of 
the  first  part  of  a  grant  deed  accompanied  by 
an  unlimited  certificate  of  title  showing  title  as 
hereinafter   specified. 

"^Vlthin  (twenty)  days  from  date  the  party  of 
the  first  part  agrees  to  furnish  an  unlimited 
certificate  of  title  issued  by  (name  of  title  or 
abstract    company),    showing    said    premises    to 


48  THE  LAW  OF  REAL  ESTATE 

be  free  and  elear  of  all  encnmbrancea,  except 
(enumerate  encumbrances,  if  any).  If  title  is 
as  specified  above,  tbe  balance  of  the  purchase 
price  will  be  paid  by  the  party  of  the  second 
part  as  agreed.  If  the  balance  of  the  purchase 
price  be  not  paid  as  agrreed,  the  amount  de- 
posited and  receipted  for  as  above  is  to  be 
relinquished  and  set  over  to  the  party  of  the 
first  part  as  a  consideration  for  this  option. 
If  title  is  not  as  specified  above,  said  deposit 
is  to  be  returned  to  the  party  of  the  second 
part. 

(Or  the  last  sentence  in  the  clause  above  is 
sometimes  made  to  read  like  this:  .'*If  title  is 
not  perfect,  as  specified  above,  but  can  be  made 
so,  the  party  of  the  first  part  is  to  have  (so 
many)  days  in  ^vhich  to  perfect  the  same,  T»-hieh 
he  hereby  agrrees  to  do;  if  title  cannot  be  so 
perfected,  said  deposit  is  to  be  returned  to  the 
party   of   the   second   part"). 

All  taxes  and  assessments  novr  levied  upon 
the  said  premises  are  to  be  paid  by   (as  agreed). 

Taxes     and     assessments 

Insurance     

licases      

Rents     

The  stipulations  and  agreements  aforesaid 
are  to  apply  to  and  bind  the  heirs,  executori*, 
administrators,  and  assigns  of  the  respective 
parties    hereto. 

In  >Tltness  ^vhereof,  the  parties  hereto  have 
affixed  their  hands  the  day  and  year  first  above 
ivritten. 

(Signature    of   seller ) 

(Signature   of   buyer > 

Signed    and    delivered    In    the    presence    of: 

(Names    of   ^ritnesses). 

In  addition  to  the  items  contained  in 
the  above  form,  any  other  conditions 
may  be  added  which  the  circumstances 
would  seem  to  require.  Although  every 
prudent  person  would  naturally  inquire 
into  all  the  details  surrounding,  and  in 
any  way  bearing  upon,  his  proposed  pur- 


THE  LAW  OF  REAL  ESTATE  49 

chase,  and  therefrom  understand  that  he 
takes  the  premises  subject  thereto,  yet 
lie  might  feel  more  secure  if  all  the  con- 
ditions be  reduced  to  writing  and  incor- 
porated into  the  contract.  If  any  reserv- 
ations to  the  owner  are  to  be  made,  they 
may  be  enumerated;  also  any  conditions 
as  to  rights  of  way,  for  the  seller,  or  for 
the  public,  or  for  railroad,  telegraph  or 
telephone  purposes ;  also  building  re- 
strictions, use  of  property,  color  and 
race  of  future  grantees,  sale  of  liquors, 
etc.  Or,  if  such  onditions,  commonly 
called  covenants,  already  exist  in  the 
deed,  or  are  on  record,  reference  may 
be  made  to  such  deed  or  record,  stating 
that  the  sale  is  made  subject  thereto, 
and  that  will  be  sufficient,  without  enum- 
erating them  again   in  the  contract. 

Also,  as  is  done  in  many  cases,  the 
contract  may  provide  that  the  deposit 
shall  be  made  with  a  third  party,  or  with 
some  bank  or  trust  company,  instead  of 
with  the  seller,  accompanied  w4th  in- 
structions to  deliver  the  same  to  the 
seller  when  the  conditions  of  the  agree- 
ment are  complied  with.  The  deed  is 
sometimes  deposited  at  the  same  time,  to 
be  delivered  to  the  buyer  when  the  title 
is  found  sufficient,  and  the  balance  of  the 


50  THE  LAW  OF  REAL  ESTATE 

money    is    paid.     This    is    called    an    es- 
crow. 

Form  of  Agreement  of  Sale  Where  All 
Cash  is  Not  to  Be  Paid. — Where  only 
part  of  the  purchase  price  is  to  be  paid 
in  cash,  the  following  form  of  contract 
is  binding  upon  all  the  parties  until  the 
terms  of  the  agreement  are  fully  com- 
pleted. As  in  the  preceding  form,  if 
there  are  any  other  conditions  or  agree- 
ments which  it  is  desired  to  reduce  to 
writing  they  may  be  incorporated  there- 
in by  stating  that  the  sale  is  made  sub- 
ject thereto.  Samples  of  such  stipula- 
tions will  be  found  in  the  installment 
contract  further  on.  This  form  of  con- 
tract constitutes  a  conditional  sale,  the 
condition  being  that  if  the  payments  are 
not  made  at  the  times  and  in  the  manner 
stipulated,  the  buyer  relinquishes  all  his 
rights  under  the  contract,  and  it  be- 
comes null  and  void  at  the  option  of  the 
seller.  He  also  loses  whatever  sums  of 
money  he  may  have  already  paid  in  at 
the  time  he  becomes  in  default.  It  is, 
in  effect,  the  same  as  the  regular  install- 
ment contract,  explained  in  detail  under 
that   heading. 

AGREEMENT      FOR      THE      SALE      OF      REAL 
ESTATE 
THIS    AGREEMENT,    made    this    (first    day    of 


THE  LAW  OF  REAL  ESTATE  51 

June,  in  the  year  nineteen  hundred  and  fifty), 
bet>veen  (Judson  Jamison,  of  the  county  of 
Kern,  state  of  California),  the  party  of  the  first 
part,  and  (George  Goodhue,  of  the  county  of 
Ventura,  state  of  California),  the  party  of  the 
second  part,  witnesseth:  .That  the  said  party 
of  the  first  part,  for  and  in  consideration  of 
the  covenants  and  agreements  hereinafter  con- 
tained and  made  by  and  on  tlie  part  of  the  said 
party  of  the  second  part,  agrees  to  sell  and 
convey  unto  the  said  party  of  the  second  part, 
and  the  said  party  of  the  second  part  agrees 
to  buy,  all  that  certain  lot,  piece,  or  parcel  of 
land,  situate,  lying  and  being  In  the  county 
of  (Ventura,  state  of  California))  and  bounded 
and    particularly   described   as   follows,   to- wit: 

(Here  describe  the  property,  same  as  In  the 
deed.  Also  It  is  well  to  refer  to  the  number 
of  the  book  and  the  page  In  which  the  record 
can  be  found  In  the  county  recorder's  office), 
for  the  sum  of  (ten  thousand  dollars)  in  gold 
coin  of  the  United  States;  and  the  said  party 
of  the  second  part,  in  consideration  of  the 
premises,  agrees  to  buy  and  to  pay  to  the  said 
party  of  the  first  part  the  said  sum  of  (ten 
thousand  dollars),  as  follows,  to-wlt:  .(One 
thousand  dollars  cash),  receipt  of  which  Is  here- 
by acknowledged,  and  (here  state  how  and 
when  and  In  what  amounts  the  balance  Is  to 
be   paid). 

It  Is  agreed  that  all  deferred  payments  shall 
bear  Interest  at  the  rate  of  (seven)  per  cent 
per    annum,    payable    (annually)    from    date. 

All  taxes  and  assessments  now  levied  upon 
the  said  premi.ses  are  to  be  paid  by   (as  agreed). 

All  taxes  and  assessments  levied  upon  the 
said  premises  subsequent  to  the  date  hereof 
are    to    be    paid    by    (as    agreed). 

Taxes   and  assessments 

Insurance     

Leases     

Rents     

It  is  understood  and  agreed  that  time  Is  of 
the  essence  of  this  contract,  and  should  the 
said  party  of  the  second  part  fail  to  comply 
with  any  of  the  terms  hereof,  then  the  said 
party  of  the  first  part  shall  be  released  from 
all  obligations  either  In  law  or  equity  to  con- 
vey said  property,  and  the  said  party  of  the 
second  part  shall  waive  and  relinquish  all  right 


52  THE  LAW  OF  REAL  ESTATE 

thereto,  and  to  all  moneys  theretofore  paid 
under  thiM  contract;  but  the  said  party  of  the 
first  part,  on  receiving  the  full  payments  at 
the  times  and  in  the  manner  above  mentioned, 
agrees  to  execute  and  deliver  to  the  said  party 
of  the  second  part  a  good  and  sufiicient  grant 
deed  to  the  premises  herein  described,  accom- 
panied with  an  unlimited  certificate  of  title 
showing  said  premises  to  be  free  and  clear  of 
all    encumbrances. 

The  stipulations  and  agrreements  aforesaid  are 
to  apply  to  and  bind  the  heirs,  executors,  ad- 
ministrators, and  assigns  of  the  respective  par- 
ties   hereto. 

In  witness  whereof,  the  parties  hereto  have 
affixed  their  hands  the  day  and  year  first  above 
written. 

(Signature   of  seller ) 

(  Signature  of   buyer ) 

Signed    and    delivered    in    the    presence   of: 

(Names    of    witnesses). 

To  the  above,  where  the  balance  of 
the  purchase  price  is  not  to  be  paid  for 
some  considerable  time,  may  also  be 
added  agreements  about  keeping  up  in- 
surance, destruction  of  property  by  fire, 
repairs,  occupancy  of  the  premises,  or 
such  other  covenants  and  stipulations  as 
the  parties  desire  or  the  circumstances 
would  seem  to  require. 

Form  of  Agreement  of  Sale  for  Part 
Cash  and  Mortgage. — Where  only  part 
of  the  purchase  price  is  to  be  paid  in 
cash,  and  a  mortgage  is  to  be  given  for 
the  balance,  the  following  form  of  con- 
tract will   meet  the   requirements: 

AGREEMENT      FOR      THE      SALE      OF      REAL 
ESTATE,    WITH   MORTGAGE 
THIS    AGREEMENT,    made    this    (first    day    of 


THE  LAW  OF  REAL  ESTATE  53 

September,  In  the  year  nineteen  hundred  and 
fifty),  between  (Lemuel  Lawrence,  of  the  coun- 
ty of  San  Diego,  state  of  California),  the  party 
of  liie  fir.st  part,  and  (Martin  Mason,  of  the 
county  of  Los  Angeles,  state  of  California),  the 
party  of  the  second  part,  ^vitnesseth:  .That  the 
said  party  of  the  first  part,  for  and  in  consid- 
eration of  the  covenants  and  agrreenients  here- 
inafter contained  and  made  by  and  on  the  part 
of  the  said  party  of  the  second  part,  agrees 
to  »ell  and  convey  unto  the  said  party  of  the 
second  part,  and  the  said  party  of  the  second 
part  agrees  to  buy,  all  that  certain  lot,  piece, 
or  jiarcel  of  land,  situate,  lying  and  being  in 
the  county  of  (San  Diego,  state  of  California), 
and  bounded  and  particularly  described  as  fol- 
lows: 

(liere  describe  the  property,  same  as  In  the 
deed),  for  the  sum  of  (fifty  thousand  dollarri), 
in  p.old  coin  of  the  United  States;  and  the  said 
party  of  the  second  part;  In  consideration  of 
ibe  premises,  agrees  to  buy  and  to  pay  to  the 
«aid  party  of  the  first  part  the  said  sum  of 
(fifty  thousand  dollars),  as  follows,  .to-wit: 
(Te:i  thousand  dollars)  upon  the  execution  of 
the  conveyance  to  the  said  party  ot  the  second 
part  within  (thirty)  days  from  the  date  hereof, 
and  the  balance  (five)  years  thereafter,  secured 
by  a  mortgage  on  the  above  described  prem- 
ises for  the  sum  of  (forty  thousand  dollars). 
Said  mortgage  to  bear  interest  at  the  rate  of 
(seven)  per  cent  per  annum,  payable  (annual- 
ly). 

And  the  said  party  of  the  first  part,  on  re  • 
ceiviiig  such  payment,  and  on  the  execution  of 
the  mortgage  by  the  said  party  of  the  second 
part,  at  the  time  and  in  the  manner  above  men- 
tioned, shall,  at  his  own  proper  cost  and  ex- 
pense, execute,  acknowledge,  and  deliver,  or 
cau^e  to  be  executed,  acknowledged,  and  de- 
livered, to  the  said  party  of  the  second  part,  a 
good  and  suflicient  grant  deed  to  the  said  prem- 
ises, accompanied  with  an  unlimited  certificate 
of  title,  showing  said  premises  to  be  free  and 
clear   of    all    encumbrances. 

The  stipulations  and  agreements  aforesaid 
are  to  apply  to  and  bind  the  heirs,  executors, 
administrators,  and  assigns  of  the  respective 
parties    hereto. 

In    witness    whereof,    the    parties    hereto    have 


54  THE  LAW  OF  REAL  ESTATE 

affixed  their  hands  the  day  and  year  first  above 
written. 

(SiS^nature   of   seller > 

(Signature    of    buyer ) 

Sigrned    and    delivered    in    the   presence   of: 
(Xames    of    witneJ^ses). 

Form  of  Contract  of  Sale  by  Corpora- 
tion.— If  it  is  a  corporation  which  is  mak- 
ing the  contract,  it  should  be  so  stated 
by  starting  the  agreement  in  this  man- 
ner: 

"This  agrreement,  made  this  (first  day  of  May, 
In  the  year  ninettu-n  hundred  and  fifty),  be- 
t^veen  the  (Royal  tlealty  Company),  a  corpora- 
tion organized  and  existing  under  the  la-ws  of 
the  state  of  (Califuruia),  the  party  of  the  first 
part,"    etc. 

Otherwise  the  above  forms  need  no 
change,  with  the  exception  of  the  closing 
paragraph,  which   should  read  Hke  this: 

"In  ^'»1tness  whereof,  the  parties  have  affixed 
their  hands,  the  sa'd  (Royal  Realty  Company) 
subscribing  its  corj-orate  name  and  affixing  its 
corporate  seal  by  its  (president  and  secretary), 
thereunto  duly  authorized  the  day  and  year 
first   above  written." 

The  contract  should  then  be  signed 
with  the  corporation  name,  followed  by 
the  names  of  the  president  and  secretary, 
or  other  officers  authorized  by  the  board 
of  directors  to  make  the  contract.  The 
corporation  seal  should  also  be  impressed 
upon  the  instrument,  and  the  name  of  a 
witness,  if  convenient,  added. 

Form   of   Agreement  of  Sale   of   Real 


THE  LAW  OF  REAL  ESTATE  55 

Estate  on  Installments. — Strange  as  it 
may  seem,  when  the  vast  amount  of 
business  transacted  in  this  manner  is 
considered,  there  is  no  specific  law  in 
this  state  governing  the  sale  of  goods  or 
real  property  on  installments  or  partial 
])ayments.  The  result  is,  there  is  great 
freedom  of  contract  in  the  matter  of  such 
sales,  and,  generally  speaking,  if  the 
agreements  do  not  violate  the  well-de- 
fined principles  of  contracts  in  their  con- 
struction, the  courts  will  enforce  them 
according  to  their  terms. 

The  form  which  follows  embodies  the 
language  and  construction  usually  em- 
ployed in  the  best  examples  of  such  con- 
tracts as  used  by  the  land  and  building 
companies  of  the  state  which  sell  houses 
and  lots  on  the  instarmient  plan,  ''like 
rent." 

>  Under  the  terms  of  these  agreements 
I  the  title  to  the  property  remains  in  the 
{seller  until  all  the  purchase  price  is  paid. 
I  If  the  buyer  fails  to  pay  any  of  the  in- 
Istallments  as  they  become  due,  the  seller 
may,  at  his  option,  car  eel  the  contract, 
I  retain  all  the  money  already  paid,  and 
1  regain  possession  of  the  premises.  If 
;the  buyer  refuses  to  give  up  possession 
ipeaceably,  the  seller  ma.y  then  bring  an 


56  THE  LAW  OF  REAL  ESTATE 

action  for  trespass  and  ejectment,  with 
damages  and  costs  added. 

The  seller  is  not  compelled  to  consider 
the  contract  as  cancelled  upon  default 
in  the  payments  if  he  does  not  choose 
to.  It  is  optional  with  him.  Instead, 
he  may  sue  for  each  payment  as  it  be- 
comes due  and  in  default,  or  for  all 
those  which  are  in  default.  This  will 
keep  the  contract  in  force,  and  any 
judgment  rendered  in  favor  of  the  seller 
may  be  collected  out  of  any  property  be- 
longing to  the  party  in  default  which  is 
not  exempt  from  execution. 

The  seller  has  still  another  remed}- 
when  payment  is  in  default.  He  may 
enforce  performance  of  the  contract  by 
sueing  for  the  entire  balance  due  upon 
it ;  but  by  so  doing  the  sale  becomes  ab- 
solute, and  the  title  passes  at  once  to 
the  buyer. 

As  most  of  the  dealers  in  lands  and 
houses  which  sell  the  same  on  install- 
ments are  incorporated,  the  sample  form 
printed  below  presumes  that  the  seller 
therein  is  a  corporation.  The  resolution 
of  the  board  of  directors  authorizing  cer- 
tain officers  to  make  such  contracts  is 
embodied  in  it.  This  is  a  good  idea,  as 
it  has  the  effect  of  making  it  part  of  the 


THE  LAW  OP  REAL  ESTATE  57 

agreement.  Samples  of  the  various  sorts 
of  stipulations  or  covenants  most  usually 
inserted  in  such  contracts  are  also  given. 
Of  course,  those  which  are  favored  can 
be  used  and  the  others  left  out,  or  dif- 
ferent ones  added.  Or,  if  the  stipula- 
tions desired  are  already  on  record  in 
some  manner,  they  may  be  omitted  from 
the  contract  entirely,  simply  substituting 
in  their  stead  a  phrase  substantially  like 
this:  ''Subject  to  such  conditions,  re- 
strictions, and  reservations  as  are  now 
of  record  on  such  lot  in  the  office  of  the 
county  recorder  of  Los  Angeles  county." 
It  is  considered  better  practice,  how- 
ever, to  enumerate  and  delineate  all  the 
desired  stipulations  in  the  contract  it- 
.-elf. 

INSTALLMENT  AGREEMENT  FOR  THE  SALE 
OF     REAL     ESTATE 

THIS  AGREEMENT,  made  and  entered  Into 
this  first  day  of  January,  in  the  year  nineteen 
hundred  and  fifty,  betT*-een  the  !Ve^v  Century 
Improvement  Company,  a  corporation  duly  or- 
Kauized  and  existing:  under  the  laws  of  the 
stale  of  California,  party  of  the  first  part,  here- 
inafter designated  as  the  seller,  and  Henry  P. 
Lyon,  party  of  the  second  part,  hereinafter 
desif^nated    as    the    buyer,    >vitnesseth: 

That  the  said  seller,  for  and  in  consideration 
of  the  payments  this  day  made,  and  the  coven- 
ants and  aA^reements  made  by  and  on  the  part 
of  the  said  buyer,  hereinafter  contained,  and 
by  virtue  of  and  in  pursuance  of  a  resolution 
of  its  board  of  directors  duly  adopted  at  a 
meeting  of  said  board  of  directors  of  said  cor- 
poration   had    on    the    t^-entleth    day   of    October, 


58  THE  LAW  OF  REAL  ESTATE 

•948,  and  Trhich  said  resolution  Is  in  the  fol- 
lowing words,  to-wit:  ."That  the  president  and 
secretary  be  and  they  are  hereby  authorized 
and  empoT\ered  for  and  fyn  behalf  of  the  cor- 
poration to  enter  into,  make,  execute,  sign, 
ackno^vledf^e,  and  deliver  any  and  all  contracts, 
deeds,  couAeyances,  or  other  writings  necessary 
Or  proper  to  sell  and  convey  to  purchasers  the 
lands  of  this  corporation,  and  that  all  such 
ontracts  be  made  in  the  name  of  this  corpora- 
tion, and  be  authenticated  with  its  seal,"  agrees 
to  sell  and  convey  unto  the  said  buyer,  and 
said  buyer  agrees  to  buy,  all  that  certain  lot, 
piece,  or  parcel  of  land,  situate,  lying  and  being 
in  the  city  of  Wilmington,  county  of  Los  An- 
geler,  state  of  California,  and  more  particularly 
described  as  follows,  to- wit:  .Lot  21,  block  84, 
of  Goodhope  tract,  as  designated  and  delin- 
eated upon  a  map  of  said  tract  now  on  record 
in  book  31,  page  62,  of  maps,  in  the  office  of 
the  county  recorder  of  Los  Angeles  county, 
state  of  California,  for  the  sum  of  sixteen  hun- 
dred dollars,  in  gold  coin  of  the  Vnited  States; 
and  the  buyer,  in  consideration  of  the  premises, 
agrees  to  buy  and  pay  to  the  seller  the  said  sum 
of  sixteen  hundred  dollars  at  the  times  and  in 
the  manner  as  follows,  to-vrit:  .One  hundred 
dollars  upon  the  execution  and  delivery  of  this 
agreement,  the  receipt  of  vrhich  is  hereby  ack- 
noAvledged,  and  the  further  sura  of  thirty  dol- 
lars on  the  first  day  of  February,  10.%0,  and  the 
further  sum  of  thirty  dollars  on  the  first  day  of 
each  and  every  month  tlierenfter  until  the  said 
total  sum  of  sixteen  hundred  dollars  is  fully 
paid.  All  said  deferred  payments  to  bear  in- 
terest at  the  rate  of  seven  per  cent  per  annum, 
said  interest  to  be  computed  and  payable  seml- 
anni:ally  from   date. 

Tbe  buyer  is  hereby  given  possession  of  the 
preiJ'-ises  aforesaid,  and  in  consideration  thereof 
he  hereby  agrees  to  pay  all  state,  county,  and 
city  taxes  of  every  nature  wliich  may  hereafter 
become  due  and  payable  on  said  premises,  in- 
cluding all  other  assessments  which  may  be 
levied  thereon  subsequent  to  the  date  hereof, 
and  to  keep  the  buildings  thereon  insured  dur- 
ing the  pendency  of  this  agreement  for  the 
sum  of  two  thousand  dollars,  loss  if  any  pay- 
able to  the  seller  as  its  interest   may  appear. 

It  is  further  covenanted  and  agreed  by  the 
parties    hereto,    as    covenants    running    with    the 


THE  LAW  OF  REAL  ESTATE  59 

land,  and  It  is  part  of  the  consideration  of  this 
agreement,  that  the  deed  conveying  title  to  the 
premises  herein  described  shall  contain  and  be 
subject  to  the  following  lintltatlons,  reserva- 
tions   and    conditions,    to->Ylt: 

First.  That  no  main  building  shall  be  erected 
or  suffered  to  remain  upon  the  premises  herein 
described  that  is  not  reasonably  worth  twenty- 
six  hundred  dollars,  and  that  said  main  building 
shall  be  erected  before  any  other  building  on 
the   property. 

Second.  That  said  main  building  shall  not 
be    less    than    t^vo    full    stories    in    height. 

Third.  That  said  main  building,  including 
the  porch  or  piazza,  but  not  including  the  front 
steps,  shall  not  be  less  than  twenty-five  feet 
from    the    front    line    of    said    lot. 

Fourth.  That  said  main  building,  or  any  part 
of  the  premises  herein  described,  shall  not  be 
used  for  any  other  than  residence  purposes, 
Avith  the  customary  outbuildings,  including  gar- 
age, v\-hich  said  outbuildings  and  garage  shall 
be  erected  only  upon  the  rear  portion  of  said 
lot. 

Fifth.  That  the  said  party  of  the  second 
part,  the  buyer  herein,  shall  not  use,  or  cause  to 
be  used,  or  allo^v,  or  in  any  manner  authorize, 
either  directly  or  indirectly,  said  premises  to 
be  used,  or  any  part  thereof,  for  the  purpose  of 
manufacturing  or  vending  intoxicating  liquors 
for    drinlc^ing    purposes. 

Sixth.  That  no  part  of  said  premises  shall 
be  sold,  leased,  or  rented  to,  or  suffered  to  be 
occupied  by  as  tenants  for  hire  or  gratuitously, 
any  person  not  of  the  white  or  caucassian  race. 

Seventh.  That  the  said  buyer  tshali  not  him- 
self, nor  shall  he  permit  any  other  person  or 
corporation  to  prospect  or  drill  for  or  develop 
or   produce    oil    or    other    hydro-carbon    products. 

Fighth.  That  there  is  hereby  expressly  re- 
served and  excepted  from  the  operation  of  this 
agreement  to  the  party  of  the  first  part,  the 
seller  herein,  their  successors,  heirs  and  assigns 
forever,  the  right  of  way  for  all  purposes  per- 
taining to  the  laying  of  and  maintenance  of 
pipes  for  water,  gas,  and  sewers  upon,  over  and 
across  said  premises,  of  such  sizes,  quantities 
and  dimensions  as  may  be  reasonably  required 
for    the    uses    for   w^hlch    the    same    are   reserved. 

Ninth.      Provided,     further,    that     each     of     the 


60  THE  LAW  OF  REAL  ESTATE 

restrictions,  covenants  and  conditions  herein 
contained  as  to  the  sale  of  intoxicating;  liquors, 
the  erection  of  houses  and  outbuildiug^s,  the 
development  and  production  of  oil  or  other  like 
substances,  and  tlie  occupancy  of  the  premises 
by  other  than  white  persons,  shall  in  all  re- 
spects terminate  and  be  of  no  further  eflPect 
on   and  after  the   first   day  of  January,   1970. 

Tenth.  It  is  also  expressly  agreed  and  under- 
stood by  and  between  the  parties  hereto,  that 
in  the  event  of  any  of  the  covenants  or  condi- 
tions herein  contained  being  or  being  held  in- 
valid or  void,  sucli  invalidity  or  voidness  shall 
in  no  way  alFect  any  valid  covenant  or  condi- 
tion  herein   contained. 

And  it  is  further  covenanted  and  agreed,  that 
should  the  buyer  fail  to  make  any  of  the  pay- 
ments as  specified  herein,  or  fail  to  comply 
with  any  of  the  foregoing  reservations,  condi- 
tions, and  restrictions,  then  the  seller  shall  be 
released  from  all  obligations  in  law  or  equity 
to  convey  said  property,  and  said  premises  shall 
immediately  revert  to  the  seller,  and  the  seller 
shall  be  entitled  to  the  immediate  possession 
thereof,  without  further  process  of  law,  and  this 
agreement  shall  become  void  and  at  an  end, 
and  the  buyer  shall  waive  and  relinquish  all 
right  thereto,  and  to  all  moneys  theretofore 
paid  under  this  agreement;  but  the  seller,  on 
receiving  the  full  payments  at  the  times  and 
in  the  manner  above  prescribed,  agrees  to  then 
execute  and  deliver  to  the  buyer  a  good  and 
sufficient  grant  deed  to  the  premises  herein 
described,  accompanied  with  a  certificate  of 
title  from  a  reputable  abstract  company  sho^r- 
ing  title  vested  in  the  !Vew  Century  Improve- 
ment Company,  free  and  clear  of  all  encum- 
brances except  as  to  restrictions,  taxes,  and 
assessments    herein    specified. 

The  stipulations,  covenants  and  agreements 
aforesaid  are  to  apply  to  and  bind  the  heirs, 
executors,  administrators,  successors,  and  as- 
signs   of    the    respective    parties    hereto. 

In  witness  whereof,  the  parties  hereto  have 
affixed  their  hands,  tlie  said  New  Century  Im- 
provement Company  subscribing  its  corporate 
name  and  affixing  its  corporate  seal  by  Its 
president     and    secretary    In     pursuance    of    the 


THE  LAW  OF  REAL  ESTATE  61 

aforementioned  resolution  thereunto  authoriz- 
ing them,  the  day  and  year  first  above  written. 
ISEW    CENTURY    IMPROVEMENT    COMPANY, 

President 

Secretary 

Signature    of     buyer 

Signed,  sealed,  and  delivered  in  the  presence 
of: 

(Names   of   witnesses). 

Form  of  Optional  Contract  of  Sale. — 

The  following  form  of  option  for  the 
sale  of  real  estate  is  all  that  is  usually 
necessary  to  bind  the  sale.  It  is  sup- 
posed that  the  buyer  has  looked  into  the 
conditions  attaching  to  the  property  be- 
fore making  his  offer,  and  is  taking  it 
subject  thereto,  but  if  desired  any  num- 
ber of  stipulations  as  to  title,  encum- 
brances, etc.,  may  be  inserted  in  the 
contract. 

REAL  ESTATE  OPTION 

(Sacramento,    Cal.,   July   24,    l»oO). 

Received  of  (Herbert  Woodley)  the  sum  of 
(fifty  dollars),  as  part  payment  for  the  follow- 
ing described  property,  situate  in  the  county 
of  (San  Joaquin,  state  of  California),  and  more 
particularly  described  as  follows: 

(Description   of   property). 

The  entire  price  to  be  paid  for  the  above 
described  real  property  is  (five  thousand  dol- 
lars),   to    be    paid    as    follows: 

(Terms    of   payment). 

A  good  and  sufileient  deed,  accompanied  by 
an  unlimited  certificate  of  title  showing  title 
vested  in  (Frank  Harris),  to  be  executed  and 
delivered  by  said  (Frank  Harris)  to  said  (Her- 
bert Woodley),  or  his  assigns,  upon  the  fulfill- 
ment and  completion  of  the  terms  and  condi- 
tions as  aliove  prescribed.  Provided,  however, 
that  If  the  payments  are  not  made  by  the  said 
(Herbert  Woodley)  at  the  times  and  in  the  man- 


62  THE  LAW  OF  REAL  ESTATE 

ner  above  prescribed,  then  this  contract  to  be 
void  and  of  no  eft'ect,  and  both  parties  re- 
leased from  all  oblij^ations  herein,  and  in  that 
event  the  said  (fifty  tloUars)  paid  on  this  date 
is  to  be  retained  by  (Frank  Harris)  as  consid- 
eration  for   this   option. 

(Signature  of  seller ) 

(Signature   of   buyer ) 

Sigrned    and    delivered    in    the    presence    of: 

(Names   of   witnesses). 

Contract  of  Sale  Binds  Seller  to  Exe- 
cute Good  and  Sufficient  Conveyance. — 
As  stated  previously,  the  contract  of 
sale  conveys  no  interest  in  the  land  it- 
self; but  an  agreement  for  the  sale  of 
real  property  OBLIGATES  the  seller  to 
execute  and  deliver  a  deed  of  conveyance 
in  form  good  and  sufficient  to  pass  the 
title  thereto.  The  right  of  the  purchaser 
to  have  such  a  title  delivered  to  him,  and 
the  duty  of  the  seller  to  convey  it,  does 
not  grow  out  of  or  depend  upon  the 
agreem.ent  between  the  parties,  but  is 
given  by  law,  on  the  general  right  of  the 
purchaser  to  require  it  when  the  condi- 
tions of  the  contract  are  fulfilled.  If  the 
seller  then  refuses  to  convey,  the  buyer's 
remedy  is  an  action  for  specific  per- 
formance of  the  agreement,  or  for  a  re- 
turn of  the  money  paid  in,  which  the 
court  will  enforce  if  it  would  be  just  and 
equitable  to  do  so. 

Or  it  may  happen  that  the  seller  is  un- 


THE  LAW  OF  REAL  ESTATE  63 

able  to  make  the  transfer  as  agreed  in 
the  contract.  He  may  have  been  mis- 
taken in  his  own  title  so  he  cannot  con- 
vey. In  such  case  the  buyer  may  sue 
the  seller  and  recover  back  what  he  has 
paid,  with  interest,  and  also  the  value  of 
his   improvements. 

Recording  Contract  of  Sale. — Not  very 
many  of  the  contracts  for  the  sale  of 
real  estate  seem  to  be  recorded,  pre- 
sumably for  the  reason  that  so  many  of 
the  real  estate  transactions  are  either 
made  on  the  installment  plan  by  large 
companies,   or   are   completed  in  escrow. 

Such  contracts  may  be  recorded,  how- 
ever, and  in  important  cases  which  take 
some  time  to  complete  it  is  probably 
well  to  do  so.  The  effect  of  recording 
or  not  recording  an  agreement  of  sale 
is  just  the  same  as  the  effect  of  record- 
ing or  not  recording  a  deed,  which  is 
explained  fully  in  the  chapter  on  the 
"Transfer  of  Real  Property."  If  the 
contract  is  to  be  recorded  it  must  first 
be  acknowledged  or  proved,  forms  for 
which  are  also  to  be  found  in  that  chap- 
ter, under  the  heading  of  *'Acknowledg- 
ment  and  Proof  of  Deeds." 

Seals. — There  is  no  distinction  in  this 
state  between   a  sealed   and   an  unsealed 


64  THE  LAW  OF  REAL  ESTATE 

instrument,  and  it  is  not  necessary  to 
use  either  a  wafer  or  a  pen  scroll  in  any 
form  after  a  signature  to  a  contract  of 
sale  to  represent  a  seal.  Neither  is  it 
necessary  to  say,  "\\' itness  my  hand  and 
seal ;"   "W^itness   my  hand"   is   sufficient. 

V/itnesses. — The  law  does  not  require 
that  there  shall  be  witnesses  to  a  con- 
tract for  the  sale  of  real  property,  but  it 
is  well  to  have  at  least  one  witness,  for 
the  purpose  of  more  conveniently  prov- 
in,sf  the  instrument,  if  necessary.  Better 
still  to  have  two,  so  that  either  may 
testify,  if  needed,  should  the  other  be 
unable  to  appear. 

Assignment  of  Contract  of  Sale. — A 
contract  for  the  sale  of  real  property 
may  be  assigned  in  the  same  manner  and 
with  the  same  effect  as  any  other  con- 
tract may  be.  The  assignment  carries 
with  it,  of  course,  only  such  right,  title, 
and  interest  as  the  assignor  may  have  in 
the  contract  at  the  time  of  the  assign- 
ment. This  is  popularly  called  his 
"equity,'*  although  in  reality  there  is  no 
recognized  equity  in  the  realty  involved 
in  a  contract  of  sale. 

There  may  be  as  many  assignments  of 
the  contract  as  there  are  new  owners  of 
the   so-called  equity;   that   is,   every   as- 


THE  LAW  OF  REAL  ESTATE  65 

signee  may  assign  his  interest  to  another 
person,    and   so   on,  ad    infinitum. 

Forms  for  Assignment  of  Contract. — 
The  contract  of  sale  may  be  assigned,  if 
it  has  not  been  recorded,  by  endorse- 
ment on  the  instrument  itself,  in  the  fol- 
lowing language : 

ASSIGN^IENT  OF  UNRECORDED  CONTRACT 
FOR  VALUE  RECEIVED,  I  do  hereby  sell, 
nsiKliern,  and  transfer  to  (Lewis  Leavitt),  his 
heirs  and  assig'n»«,  all  my  rislit,  title  and  in- 
terest in,  to,  and  under  the  \Tithln  instrument, 
together  T»-ith  and  including  all  moneys  hereto- 
fore   paid    thereunder. 

(SIgrnature   of   assignor ) 

(Date ) 

The  actual  or  real  consideration  for 
an  assignment  need  not  be  shown. 

If,  after  the  assignment,  it  is  desired 
to  record  the  contract,  both  the  original 
agreement  and  the  assignment  must  be 
first  acknowledged. 

If  the  original  contract  has  already 
been  recorded,  then  the  follov/ing  form 
of   assignment   should   be  used : 

ASSTGXMENT  OF  RECORDED  CONTRACT 
K\OV4  ALL,  >IEX  BY  THESE  PRESENTS: 
That  (Snmuel  Simpson),  the  party  of  the  first 
part,  fo?  and  in  consideration  of  the  sum  of 
((en)  doTlars,  in  hand  paid  by  (Thomas  Taber), 
ihe  rariy  of  the  second  part,  the  receipt  of 
which  itt  hereby  ackrovrIeds?ed,  does  by  these 
presents  grant,  assign,  transfer,  and  set  over 
unto  the  said  party  of  the  second  part,  all  his 
right,  title,  and  interest  to,  in,  and  under  a 
certain  contract  or  agreement  of  sale,  bearing 
date   the    (nineteenth   day   of   July,   1950),   made 


66  THE  LAW  OF  REAL  ESTATE 

and  executed  by  (name  of  seller),  to  (Samuel 
Simpson),  and  recorded  In  book  number  (3044> 
of  Deeds,  at  page  (190),  in  the  office  of  the 
county  recorder  of  (San  Bernardino)  county,, 
state  of  (California),  of  and  to  the  real  property 
more    particularly   described    as    follows,    to-wlt: 

(Here  describe  property,  same  as  in  the  agree- 
ment). 

In  ■»Titness  whereof,  the  said  party  of  the  flrst 
part  has  herennio  set  his  h«nd  this  (flrst  day 
of  December,  1950). 

(Signature   of   assignor ). 

Signed    and    delivered    in    the    presence    of: 

(Names    of    witnesses). 

The  assignment  should  be  acknowl- 
edged and  recorded  also,  in  the  same 
recorder's  office  where  the  original  con- 
tract is  recorded. 

But  if  the  original  contract  is  not  re- 
corded,  the  assignment  of  it  cannot  he. 

Form  of  Contract  for  Exchange  of 
Property. — AVhere  parties  desire  to  ex- 
change properties  without  the  employ- 
ment of  an  agent,  the  following  form  of 
contract  will  answer  the  purpose  ad- 
mirably. If  to  be  exchanged  through 
the  medium  of  an  agent,  the  same  form 
with  commission  clauses  added  will  be 
found  in  the  chapter  on  "Real  Estate 
Agents." 

AGREEMENT  FOR  EXCHANGE  OF  REAL 
ESTATE 
THIS  AGREEMENT  witnesseth:  That  (I, 
Jacob  Jackson),  am  the  owner  of  the  following 
described  first  piece  of  property,  situate,  lying 
and  beJnpT  in  the  (city  of  Monrovia,  county  of 
Los  Angeles,  state  of  California),  and  more 
particularly  described  as  foUowa*  to«frttt 


THE  LAW  OF  REAL  ESTATE  67 

(Give  description  here,  same  as  in  deed,  also 
Btatingr  encumbrances  and  restrictions,  if  any), 
>Thich  I  desire  to  exchange  for  the  follo^vlngr 
described  second  piece  of  property,  owned  by 
(Jeremiah  Johnson),  situate,  lying  and  being  In 
the  (city  of  Compton,  county  of  Los  Angeles, 
state  of  California),  and  more  particularly  de- 
scribed   as    follows,    to-wit: 

(Here    describe    second    piece    of    property   suf- 
ficiently    to     identify     it,     also      stating-      encum- 
brances    and     restrictions,     if     any), 
upou  the   terms  and  conditions   as  set   forth   be- 
low,   to-wlt: 

(Here  set  forth  in  detail  the  terms  of  the 
exchange). 

And  I  hereby  agree,  that  if  the  said  (Jeremiah 
Johnson)  shall  accept  the  proposition  to  ex- 
change the  above  described  property  on  the 
above  terms,  that  I  will,  within  (thirty  days) 
thereafter,  furnish  a  certificate  of  title,  or  ab- 
stract, from  some  reputable  abstract  company, 
showing  the  said  property  to  be  free  and  clear 
of  all  encumbrance,  except  (state  encumbrance 
here,  if  any),  and  then,  upon  the  fulfillment  of 
said  terms  and  conditions,  execute  and  deliver 
a  good  and  sufficient  grant  deed  conveying 
title  to  the  property  first  above  described  to 
the  said  (Jeremiah  Johnson),  his  assigns  or 
representatives. 

I  also  agree  to  allow  a  reasonable  time  for 
the  furnishing  of  a  certificate  of  title  of  the 
second  of  the  above  described  properties,  and 
a  good  and  sufficient  grant  deed  conveying  the 
same. 

(  Signature  of  first  party ) 

(Dated  at    ) 

The  following-  form  of  acceptance  of 
the  above  offer  may  be  written  on  the 
same  sheet  of  paper,  or  on  a  separate 
sheet  and  attached  thereto.  When  prop- 
erly signed  and  dated,  the  contract  be- 
tween the  parties  is  complete: 


68  THE  LAW  OF  REAL  ESTATE 

AGREEMENT     OF     ACCEPTANCE     OF     OFFER 
TO    EXCHANGE    PROPERTY 

THIS  AGREEMENT  wltnesseth:  .That  (Jere- 
miah Johnson),  o>rner  of  the  second  piece  of 
property  described  in  the  fvithin  instrument, 
hereby  accepts  the  proposition  of  exchange 
made  therein,  and  upon  the  terms  and  condi- 
tions stated  therein,  and  ag^rees,  vrithin  (thirty 
days),  to  furnish  a  certificate  of  title,  from  a 
reputable  abstract  company,  8ho\>'ing  the  said 
property  to  be  free  and  clear  of  all  encum- 
brance, except  (state  encunibrauce  here,  if  any), 
and  then,  upon  the  fulfillment  of  said  terms 
and  conditions,  to  execute  and  deliver  a  good 
and  sufficient  srant  deed  of  snid  property  to 
the  said  (Jacob  Jaclsson),  his  assi&rns  or  repre- 
sentatives. 

(Siernatnre  of  second   party ) 

(Dated  at    ) 


CHAPTER  IV. 


TRANSFER  OF  REAL 
PROPERTY 


Transferring  real  property  is  an  act  of 
the  parties,  or  of  the  law,  by  which  the 
title  to  the  property  is  conveyed  from 
one  living  person  to  another. 

The  transfer  can  be  made  only  by  an 
instrument  in  writing,  usually  called  a 
deed,  or  grant. 

The  term  "grantor"  is  used  to  signify 
one  who  conveys  land;  and  he  to  whom 
the  conveyance  is  made  is  called  the 
"grantee." 

When  a  transfer  of  real  property  is 
accomplished,  it  is  not  the  corporeal  or 
actual  property  itself  which  is  conveyed, 
but  rather  the  incorporeal  something 
which  we  speak  of  as  the  "title." 

Title  may  be  said  to  be  the  means 
whereby  the  owner  of  real  property  has 
the  just  and  legal  possession  and  enjoy- 
ment of  it.  In  other  words,  it  is  the  evi- 
dence which  a  person  has  of  the  right  to 


70  THE  LAW  OF  REAL  ESTATE 

the  possession  of  property — the  owner- 
ship of  it.  Therefore  it  is  that  when  the 
property  is  sold  it  is  the  title — the  evi- 
dence of  ownership — in  the  form  of  a 
grant  or  deed  thereof,  which  is  trans- 
ferred. 

The  transfer  must  be  accompanied 
with  certain  formalities,  and  until  these 
are  fully  complied  with  there  can  be  no 
alienation  or  conveyance  of  the  title  by 
one  person  in  favor  of  another.  The 
process  of  conveyance  has,  however,  been 
much  simplified  of  recent  years,  although 
many  forms  of  deeds  still  contain  an  un- 
required amount  of  verbal  rubbish  and 
redundant  phraseology. 

Following  in  this  chapter  will  be  found 
the  various  forms  of  grants  or  deeds  now 
in  common  use  in  this  state,  with  vari- 
ous useful  comments  and  explanations. 

DESCRIPTION   OF  PROPERTY. 

What  Is  SufHcient  Description — The 
premises  to  be  transferred  may  be  de- 
scribed in  detail  by  measurements  ac- 
cording to  the  survey,  or  it  may  be  de- 
scribed as  being  the  premises  located  at 
such  and  such  a  number  on  such  and 
such  a  street  in  such  and  such  a  town ; 
or   if   the  premises   are  known   by   some 


THE  LAW  OF  REAL  ESTATE  71 

popular  name,  such  as  the  "Kearney 
ranch,"  for  instance,  it  will  be  sufficient 
to  describe  them  simpl}-  by  such  name. 

It  is  also  a  sufficient  description  to  re- 
fer to  another  description  in  some  other 
deed,  or  plot,  map,  or  other  instrument 
on  record  in  a  public  office. 

CONSIDERATION  FOR  TRANSFER 

Kinds  of  Consideration — There  must 
be  a  consideration  for  every  valid  deed. 

The  consideration  may  be  either 
*'good"  or  'Valuable.*' 

Good  consideration  is  founded  upon 
blood  relationship,  or  natural  love  and 
affection,  such  as  exists  between  parent 
and  child,  or  husband  and  wife.  Such 
consideration,  unless  used  as  the  basis  of 
intent  to  defraud  creditors  or  others,  is 
sufficient  in  law   to  justify   the  transfer. 

Valuable  consideration  is  founded  up- 
on something  deemed  valuable,  such  as 
money,  stocks,  other  lands,  goods,  serv- 
ices, or  the  like,  which  the  law  esteems 
an  equivalent    for  the    grant. 

Marriage  is  a  valuable  consideration ; 
so  is   support  and  maintenance. 

The  true  consideration  need  not  be  ex- 
pressed in  the  deed.  It  may  be  stated 
as   orie  dollar,   or  any   sum,   or   it  need 


72  THE  LAW  OF  REAL  ESTATE 

not  be  mentioned  at  all.  If  it  becomes 
necessary  to  prove  the  true  considera- 
tion the  law  permits  it  to  be  shown  by 
oral  testimony. 

V/ARRANTY. 

Is  Implied  by  Law. — The  forms  of 
deeds  now  generally  used  here  are  the 
simple  "Grant  Deed,"  and  the  ''Grant, 
Bargain  and  Sale  Deed."  Neither  form 
contains  any  of  the  covenants  of  war- 
ranty often  found  in  conveyances,  for 
the  reason  that  the  law  provides  that 
every  "grant"  of  real  property  carries 
with  it  an  implied  warranty,  which  may 
be  sued  upon  the  same  as  if  inserted  in 
the  deed,  thereby  rendering  it  unneces- 
sary to  insert  warranty  clauses  in  the 
instrument  itself.  The  language  of  the 
code  is  as  follows : 

From  the  use  of  the  word  "grant"  in 
anv  conveyance  by  which  an  estate  of 
inheritance  or  fee  simple  is  to  be  passed, 
the  following  covenants,  and  none  other, 
on  the  part  of  the  grantor  for  himself 
and  his  heirs  to  the  grantee  and  his 
heirs  and  assigns,  are  implied,  unless 
restrained  by  express  terms  contained  in 
such  conveyance : 

1.     That  previous  to  the   time  of  the 


THE  LAW  OF  REAL  ESTATE  73 

execution  of  such  conveyance,  the  grant- 
or has  not  conveyed  the  same  estate,  or 
any  right,  title  or  interest  therein,  to 
any  person  other  than   the  grantee; 

2.  That  such  estate  is  at  the  time  of 
the  execution  of  such  conveyance  free 
from  encumbrances  done,  made,  or  suf- 
fered by  the  grantor,  or  any  person 
claiming  under  him. 

Such  covenants  may  be  sued  upon  in 
the  same  manner  as  if  they  had  been 
expressly  stated  in   the  conveyance. 

"Encumbrances"  includes  taxes,  as- 
sessments, and  all  liens  upon  real  prop- 
erty. 

PROPERTY  RIGHTS  OF  HUSBAND 
AND  WIFE. 

Necessity  for  Signatures  of  Both  to 
Transfer. — The  property  rights  of  hus- 
band and  wife  in  this  state,  and  the 
law  as  to  the  conveyance  of  the  same 
bv  either  or  both,  is  fully  set  forth  in 
the  chapter  on  "Ownership  and  Control 
of   Real    Property." 

FORMS  FOR  DEEDS. 

The  following  forms  represent  about 
all  those  which  the  conveyancer  usually 
finds  necessary: 


74  THE  LAW  OF  REAL  ESTATE 

Grant  Deed,  Code  Form. — Realizing 
that  the  usual  forms  of  deeds  contained 
too  much  useless  verbiage,  the  legisla- 
ture prescribed  substantially  the  form  of 
grant  deed  which  follows  as  being  suf- 
ficient to  convey  real  property  in  this 
state.  Nothing  could  be  simpler;  at  the 
same  time  nothing  more  is  necessar}^ 
It  fills  all  the  requirements  of  a  valid 
conveyance,  and  is  rapidly  coming  into 
general   use : 

FORM   FOR   GRANT   DEED 

(Bernard  Bailey),  of  the  (County  of  Inyo, 
eitate  of  California),  for  and  in  consideration  of 
tlie  sum  of  (one  hundred  dollars),  the  receipt 
>vhereof  is  hereby  ackno^vledged,  does  hereby 
^rant  to  (Charles  Conley)  all  that  real  prop- 
erty situate  in  the  county  of  (Inyo,  state  of 
California),    rTescribed    as    follorrs: 

(Description  of   property). 

AVitness  my  hand  this  (first  day  of  March, 
nineteen    hundred   and   fifty). 

Signed    and    delivered    in    the    presence    of: 

(Names    of    Tritnesses). 

(Signature    of    grantor ) 

Grant,  Bargain  and  Sale  Deed. — This 
is  another  simple  form  of  deed  which 
shares  the  popularity  of  the  somewhat 
simpler  grant  deed  given  above : 

FORM  FOR  GRANT.  BARGAIN  AND  SALE 
DEED 

THIS  I>DENTrRE,  made  the  (fourth  day  of 
April,  in  the  year  of  our  Ijord  nineteen  hun- 
dred nnd  f!fty>,  bevvrcrn  (David  Dickinr.cn), 
party  of  the  first  part,  and  (Daniel  Derondo), 
party  of  the  second  part, 

Wltnesseth:    Tliat  the  aald  party  of  tbe  first 


THE  LAW  OF  REAL  ESTATE  75 

part,  for  and  In  consideration  of  the  sum  of 
(one  hundred  dollars),  to  hiui  In  hand  paid  by 
the  said  party  of  the  second  part,  the  receipt 
whereof  Im  hereby  acknowledged,  does  by  these 
presents  fcrant,  bargain  and  sell,  convey  and 
confirm  unto  the  said  party  of  the  second  part, 
and  to  his  heirs  and  aKsigns  forever,  all  that 
certain  lot,  piece,  or  parcel  of  land  situate, 
lying-  and  being  in  the  (county  of  Santa  Bar- 
bara, state  of  California),  and  bounded  and  par- 
ticularly dei>«cribed  as  follows,  to- wit: 
(Description    of    property). 

Together  with  all  and  singular  the  tenements, 
hereditaments,  and  appurtenances  thereunto  be- 
longing or  in  anywise  appertaining,  and  the  re- 
version and  reversions,  remainder  and  remaind- 
ers,   rents,    Issues    and    profits   thereof. 

To  have  and  to  hold,  all  and  singular  the 
said  premises,  together  with  the  appurtenances 
unto  «he  said  party  of  the  second  part,  and  to 
his   heirs    and  assigns   forever. 

In  witness  whereof,  the  said  party  of  the 
first  part  has  hereunto  set  his  hand  the  day 
and    year    first    above    ^vrltten. 

(Signature  of  grantor ) 

Signed    and    delivered    In    the    presence    of: 

(Names    of    witnesses). 

Warranty  Deed. — This  form  of  deed 
is  not  very  much  used  in  this  state,  for 
the  reason,  as  previously  stated,  that  the 
covenant  of  warranty  is  impHed  by  law 
in  the  use  of  the  word  ''grant." 

FORM  FOR  W^ARRANTY  DEED 
THIS  INDENTURE,  mace  the  (tenth  day  of 
May,  in  the  year  of  our  Lord  nineteen  hundred 
and  fifty),  between  Howard  Hendricks,  the 
party  of  the  first  part,  and  (Abel  Apper- 
son),  the  party  of  the  second  part,  witnes- 
seth:  .That  the  said  party  of  the  first  part, 
for  and  in  consideration  of  the  sum  of  (one 
thou.sand  dollars),  gold  coin  of  the  United  States 
of  America,  to  him  in  hand  paid  by  the  said 
party  of  the  second  part,  the  receipt  \vhereof 
la  hereby  acknowldged,  does  by  these  presents 
grant,  bargain  and  sell,  convey  and  confirm 
unto   the   said   party   of   the   second  part,  and   to 


It  THE  LAW  OF  REAL  ESTATE 

his  heirs  and  assigrns  forever,  all  that  certain 
lot,  piece,  or  parcel  of  land,  situate,  lying  and 
being  in  the  (county  of  Ventura,  state  of  Cali- 
fornia), and  bounded  and  particularly  described 
as    folloTTS,   to-Tvit: 

(Description    of    property). 

Together  vrith  all  and  singular  the  tenements, 
hereditaments,  and  appurtenances  thereunto  be- 
longing or  iu  any^Tise  appertaining,  and  the 
reversion  and  reversions,  remainder  and  re- 
iiiKiuders,    rents,    i»sues    and    profits    thereof. 

To  have  and  to  hold  the  saiue  to  the  said 
(Abel  Apperson),  his  heirs  and  assigns  forever, 
and  the  said  first  party  does  hereby  covenant 
with  the  said  (Abel  Apperson)  and  his  legal 
representatives  that  the  said  real  estate  is  free 
from  all  encumbrances,  and  that  he  >vill,  and 
his  heirs,  executors  and  administrators  shall, 
■»varrant  and  defend  the  same  to  the  said  (Abel 
Apperson),  his  heirs  and  assigns  forever,  against 
the  just  and  lawful  claims  and  demands  of  all 
persons    whomsoever. 

In  witness  whereof,  the  said  party  of  the 
first  part  has  hereunto  set  his  hand  the  day 
and  year  first  above  written. 

(Signature    of   grantor > 

Sierned  and  delivered  in  the  presence  of: 

(Xames    of   witnesses). 

Quitclaim  Deed. — This  form  of  deed 
is  only  used  where  the  grantor  has  an 
interest  in  land  as  one  of  several  heirs, 
or  as  a  joint  owner,  and  wishes  to  con- 
vey his  share  to  another  heir,  or  to 
another  joint  owner;  or  in  cases  where 
Q  person  has  some  minor  interest  in 
land,  or  some  supposed  or  possible  in- 
terest which  is  not  clearly  defined,  which 
he  wishes  to  convey  to  the  owner  of 
the  fee  for  the  purpose  of  clearing  the 
title. 

A  quitclaim  deed  contains  none  of  the 


THE  LAW  OF  REAL  ESTATE  77 

covenants  of  warranty,  but  purports  to 
convey  and  does  convey  simply  what- 
ever interest  the  grantor  may  be  pos- 
sessed of,  or  is  supposed  to  be  pos- 
sessed of,  at  the  time  of  its  execution. 
The  grantor  warrants  nothing,  and  the 
grantee  is  said  to  take  the  risk  of  the 
title  conveyed  by  the  quitclaim,  unless 
there   is   fraud. 

FORM  FOR  QUITCLAIM  DEED 

THIS  INDENTURE,  made  the  (fourteenth  day 
of  October,  lii  the  year  of  our  Lord,  nineteen 
hundred  and  fifty),  betT»een  (Eb»'nezer  Ewing), 
the  party  of  the  first  part,  and  (Caleb  Cochran), 
the  party  of  the  second  part,  ^;yltnes8eth:  .That 
the  said  party  of  the  first  part,  for  and  in 
consideration  of  the  sum  of  (one  hundred  dol- 
lars), to  him  In  hand  paid  by  the  said  party  of 
the  second  part,  the  receipt  -whereof  is  hereby 
aclcnoTvIed^ed,  has  remised,  released  and  for- 
ever quitclaimed,  and  by  these  presents  does 
remise,  release  and  forever  quitclaim,  unto  the 
said  party  of  the  second  part  and  to  his  heirs 
and  assigns,  all  that  certain  lot,  piece,  or  par- 
cel of  land,  situate,  lying  and  beins'  in  the 
(county  of  Los  Angreles,  state  of  California), 
and  bounded  and  particularly  described  as  fol- 
lo\^-s,   to-wit: 

(Here  describe  the  property  or  the  Interest  to 
be  quitclaimed). 

AVitness  my  hand  the  day  and  year  first  above 
written. 

(Signature  of  grrantor ) 

Slgmed    and    delivered    in    the   presence    of: 

(Names   of  >vitnesses). 

Deed  of  Gift. — As  stated  at  the  begin- 
ning of  this  chapter,  love  and  affection 
is  a  sufficient  consideration  for  the 
transfer    of    property.      The     following 


78  THE  LAW  OF  REAL  ESTATE 

form  will  suffice  where  the  conveyance 
is  intended  as  a  gift,  without  money 
consideration : 

FORM    FOR    DEED    OF    GIFT 

THIS  INDENTURE,  made  the  (second  day  of 
June,  in  the  year  of  our  Lord  nineteen  hundred 
and  fifty),  between  (Edward  Edwards)  of  the 
(county  of  Fresno,  state  of  California),  the 
party  of  the  first  part,  and  (Frank  Folsom  Ed- 
wards), the  party  of  the  second  part,  wit- 
nesseth:  .That  the  said  party  of  tlie  first  part, 
for  and  in  consideration  of  the  love  and  affec- 
tion which  the  said  party  of  the  first  party  has 
and  bears  unto  said  party  of  the  second  part, 
as  also  for  the  better  maintenance,  support, 
protection  and  livelihood  of  said  party  of  the 
second  part,  does  by  these  presents,  srive,  grant, 
alien  and  confirm,  unto  the  said  party  of  the 
second  part,  and  to  his  heirs  and  assigns  for- 
ever, all  that  certain  lot,  piece,  or  parcel  of 
land,  situate,  lying:  and  bein$?  in  the  (city  of 
Lodi,  county  of  Fresno,  state  of  California),  and 
bounded  and  particularly  described  as  follow^s, 
to- wit  J 

(Description    of    property). 

Together  with  all  and  singular  the  tenements, 
hereditaments  and  xippurtenances  thereunto  be- 
lon^in^,  or  in  anywise  appertaining:,  and  the 
reversion  and  reversions,  remainder  and  re- 
mainders,   rents.    Issues    and    profits    thereof. 

To  have  and  to  hold,  all  and  sinj^ular  the 
said  premises,  together  with  the  appurtenances 
and  privileges  thereunto  incident,  unto  the  said 
party  of  the  second  part,  his  heirs  and  assigns 
forever. 

In  witness  whereof,  the  said  party  of  the 
first  part  has  hereunto  set  his  hand  the  day 
and  year  first  above  written. 

(Signature  of  grantor ) 

Signed   and    delivered   in    the    presence    of: 

(Names   of   witnesses). 

Deed  by  Corporation. — The  property 
of  a  corporation  can  be  sold  and  trans- 
ferred   only    by    resolution    of    its  board 


THE  LAW  OF  REAL  ESTATE  79 

of  directors  or  stockholders.  The  offi- 
cers, as  such,  have  no  right  or  authority 
to  dispose  of  its  possessions,  unless  spe- 
cially authorized  so  to  do.  When  so 
authorized  the  following  form  is  usually 
employed : 

FORM  FOR  BARGAIN  AND  SALE  DEED  BY 
CORPORATION 

THIS  INDE.XTURE,  made  the  (third  day  of 
January,  In  the  year  of  our  L.ord  nineteen 
hundred  and  fifty),  between  (Standard  aianu- 
facturingr  Co.),  a  corporation  organized  under 
the  laws  of  the  state  of  California,  and  having 
Its  principal  place  of  business  in  the  (city  of 
San  Francisco,  state  of  California),  the  party 
of  the  first  part,  and  (George  Goodhart),  the 
party  of  the  second  part,  witnessetli:  .That  the 
said  party  of  the  first  part,  for  and  in  consid- 
eration of  the  sum  of  (ten  dollars),  to  it  in 
hand  paid  by  the  said  party  of  the  second  part, 
the  receipt  whereof  is  hereby  ackno^vledged, 
has  granted,  bargained  and  sold,  conveyed  and 
confirmed,  and  by  these  presents  does  grant, 
bargain  and  sell,  convey  and  confirm  unto  tlie 
said  party  of  the  second  part,  and  to  his  heirs 
and  assigns  forever,  all  that  certain  lot,  piece, 
or  parcel  of  land  situate,  lying  and  being  in 
the  (county  of  San  Mateo,  state  of  California), 
and    particularly   described   as   follows,   to- wit: 

(Description    of    property). 

Together  with  all  and  singular  the  tenements, 
hereditaments  and  appurtenances  thereunto  be- 
lonerin^:  or  in  any^vise  appertaining,  and  the 
reTeralon  and  re-verslons,  remainder  and  re- 
mainders,   rents,    issues    and    profits    thereof. 

To  have  and  +o  hol'^-  al»  «nd  sin-riilar  the  said 
premiaea,  together  with  the  appurtenances,  on- 
to the  party  of  the  second  part  and  to  his  heirs 
and  assigns  forever. 

In  witness  whereof:  The  said  party  of  the 
ilrst  part  has  caused  its  corporate  name  and 
•eal  to  be  affixed  by  its  (president)   and  (aeere- 


80  THE  LAW  OF  REAL  ESTATE 

tary)     thereunto    duly    authorized    the    day    and 
year    in    this    Indenture    first    above    ^Tritten. 
(Corporate  seal) 

By ,     President 

By ,     Secretary 

Joint  Tenancy  Deed. — The  peculiar 
feature  of  this  form  of  deed  is  the  right 
of  survivorship.  That  is,  where  prop- 
erty is  conveyed  to  two  or  more  persons 
tas  joint  tenants,  each  holds  an  equal 
share,  with  equal  rights  in  all  respects, 
and  upon  the  death  of  one  joint  tenant 
the  estate  passes  in  its  entirety  to  the 
survivors,  and  finally  to  the  last  sur- 
vivor, and  not  to  the  heirs  or  representa- 
tives of  the  deceased.  This  form  of 
deed  is  used  quite  frequently  in  convey- 
ing property  to  husband  and  wife : 

FORM  FOR  JOINT  TENANCY  DEED,  WITH 
RIGHT  OF  SURVIVORSHIP 
THIS  INDENTURE,  made  this  (sixth  day  of 
November,  in  the  year  of  our  Lord  nineteen 
hundred  and  fifty),  between  (Lewis  Lawson), 
the  party  of  the  first  part,  and  (AA'illlam 
AVhlteside  and  Helen  "Uniiteslde),  husband 
and  wife,  the  parties  of  the  second  part, 
as  joint  tenants  with  rii^ht  of  survivorship, 
witnesseth:  That  the  said  party  of  the  first 
part,  for  and  In  consideration  of  the  sum 
of  (ten  dollars),  to  hiiu  In  hand  paid  by 
the  parties  of  the  second  part,  the  receipt 
whereof  Is  hereby  acknowledged,  does  by  these 
presents  grant,  bargain  and  sell,  convey  and 
confirm  unto  the  ."^aid  parties  of  the  second 
part  as  .loint  tenants,  and  to  the  survivor  of 
them,  his  or  her  heirs  and  assigns  forever,  all 
that  certain  lot,  piece,  or  parcel  of  land  situate, 
lying  and  being  In  the  (county  of  Santa  Clara, 
state  of  California),  and  bounded  and  partlcii'« 
larly   described   as    follows,   to-wlt: 


THE  LAW  OF  REAL  ESTATE  81 

(Description    of   property). 

Together  with  all  and  siug^iilar  the  tenements, 
hereditaments,  and  appurtenances  thereunto  be- 
longlngr  or  in  anytvlse  appertaining,  and  the 
reversion  and  reversions,  remainder  and  re- 
mainders,   rents,    issues    and    profits    thereof. 

To  have  and  to  hold,  all  and  singular  the 
said  premises,  together  v*-ith  the  appurtenances, 
unto  the  said  parties  of  the  second  part  as  joint 
tenants,  ard  to  tlie  survivor  of  theui,  his  heirs 
and   assigns   forever. 

In  vFitness  whereof,  the  said  party  of  the  first 
part  has  hereunto  set  his  hand  the  day  and 
year   first   above  vrritten. 

( Signature   of   grantor ) 

Signed    and    delivered    in    the    presence    of: 

(Names   of  vritnesses). 

SUGGESTIONS  FOR  USE  OF  THE 
FORMS. 

Changing  the  Phraseology. — In  using 
the  forms  in  this  chapter,  the  nouns, 
pronouns  and  verbs  should  of  course  be 
changed  to  suit  where  there  is  more 
than  one  grantor  or  grantee,  or  the 
grantor  or  grantee  is  a  female  or  a  cor- 
poration. 

In  Case  of  Mortgage. — If  the  property 
to  be  conveyed  is  mortgaged,  the  fol- 
lowing clause  should  be  inserted  in  the 
deed  after  the  description : 

Subject  to  a  mortgage  of  (five  hundred  dol- 
lars), payable  to  (Simon  Simpson),  and  paying 
interest  at  the  rate  of  (seven)  per  cent  per 
annum,  which  the  party  of  the  second  part  as- 
sumes and  agrees  to  pay. 

Stating  Marital  Condition  of  Grantor. 

— It  is  customary  nowadays  in   convey- 


82  THE  LAW  OF  REAL  ESTATE 

ancing  to  insert  in  the  deed,  after  the 
name  of  the  grantor,  a  phrase  indicat- 
ing the  marital  state  of  said  grantor,  as 
per    the   following   examples : 

"Bet'ireen  John  Bro^tvn,  a  •^vidoiver,  the  party 
of    the    first    part,"    etc. 

"Between  Thomas  Smith,  a  single  man,  the 
party  of  the  first  part,"  etc. 

**Bet'»veen  Sarah  Thompson,  a  ■wldOTv,!  the 
party  of  the  first  part,"  etc. 

"Between  Jennie  Roe,  a  single  Troman,  the 
party  of  the  first  part,"  etc. 

Requiring  Signatures  of  Both  Hus- 
band and  Wife. — As  explained  in  a  pre- 
vious chapter,  it  is  not  necessary  to 
have  the  signatures  of  both  husband 
and  wife  to  an  instrument  of  convey- 
ance of  the  separate  property  of  either, 
but  for  the  reasons  there  given  it  is  now 
customary  to  require  both.  Therefore 
deeds  by  married  persons  should  be 
worded  this  way,  placing  the  name  of 
the  one  in  whose  name  the  property 
stands  first: 

"Between  James  Gibson  and  Hannah  Gibson, 
husband  and  ^vlfe,  the  parties  of  the  first  part,'' 
etc. 

"Between  Mabel  Morrison  and  Walter  Morri- 
son, husband  and  wife,  the  parties  of  the  first 
part,"    etc. 

When  Grantor  Must  State  Former 
Name. — Any  person  in  whom  the  title 
to  real  estate  is  vested,  who  shall  after- 


THE  LAW  OF  REAL  ESTATE  83 

wards,  from  any  cause,  have  his  or  her 
name  changed,  must,  in  any  conveyance 
of  said  real  estate  so  held,  set  forth  the 
name  in  which  he  or  she  acquired  title 
to  said  real  estate.     Example : 

''Between  Clara  Burton,  formerly  Clara  MIb- 
ner,  the   party  of   the   first   part,"   etc. 

Restrictions. — Where  several  restric- 
tions are  to  be  inserted  in  the  deed  it 
is  well  to  number  them  in  rotation  for 
convenience.  The  following  examples 
cover  nearly  all  those  usually  employed, 
but  others  may  be  easily  framed  along 
the  same  lines : 

Provided,  hci^'ever,  that  this  conveyance  is 
made  and  accepted  on  each  of  the  following 
conditions,  which  are  hereby  made  covenants 
running'   with    the    land,   to-wit: 

First.  That  no  main  building  shall  be  erected 
or  suffered  to  remain  upon  the  premises  herein 
conveyed  that  is  not  reasonably  worth  twenty- 
six  hundred  dollars,  and  that  said  main  building; 
shall  be  erected  before  any  other  building  on 
the   property. 

Second.  That  said  main  building  shall  not 
be    less    than    two    full    stories    in    height. 

Third.  That  said  main  building,  including 
the  porch  or  piazza,  but  not  including  the  front 
steps,  shall  not  be  less  than  twenty-five  feet 
from   the    front    line    of   said    lot. 

Fourth.  That  said  main  building,  or  any  part 
of  the  premises  herein  described,  shall  not  be 
used  for  any  other  than  residence  purposes, 
with  the  customary  outbuildiugs,  including  gar- - 
age,  which  said  outbuildings  and  garage  shall 
be  erected  only  upon  the  rear  portion  of  said 
lot. 

Fifth.  That  the  said  party  of  the  second 
part,  the  buyer  herein,  shall  not  use,  or  cause  to 
be  used,  or   allow,  or  in   any  manner  authoriae. 


84  THE  LAW  OF  REAL  ESTATE 

either  directly  or  Indirectly,  said  premises  to 
be  used,  or  any  part  thereof,  for  the  purpose  o£ 
manufacturing  or  vending^  intoxicating  liquors 
for    drinking    purposes. 

Sixth.  That  no  part  of  said  premises  shall 
be  sold,  leased,  or  rented  to,  or  suffered  to  be 
occupied  by  as  tenants  for  hire  or  gratuitously, 
any  person  not  of  the  •white  or  caucassian  race. 

Seventh.  That  the  said  buyer  shall  not  him- 
self, nor  shall  he  permit  any  other  person  or 
corporation  to  prospect  or  drill  for  or  develop 
or    produce    oil    or    other   hydro-carbon    products. 

Eighth.  That  there  la  hereby  expressly  re- 
served and  excepted  from  the  operation  of  this 
agreement  to  the  party  of  the  first  part,  the 
seller  herein,  their  successors,  heirs  and  assigns 
forever,  the  right  of  way  for  all  purposes  per- 
taining to  the  laying  of  and  maintenance  of 
pipes  for  water,  gas,  and  sewers  upon,  over  and 
across  said  premises,  of  such  sizes,  quantities 
and  dimensions  as  may  be  reasonably  required 
for    the    uses    for    which    the    same    are    reserved. 

ZVinth.  Provided,  further,  that  each  of  the 
restrictions,  covenants  and  conditions  herein 
contained  as  to  the  sale  of  intoxicating  liquors, 
the  erection  of  houstes  and  outbuildings,  the 
development  and  production  of  oil  or  other  like 
substances,  and  the  occupancy  of  the  premises 
by  other  than  white  persons  shall  in  all  re- 
spects terminate  and  be  of  no  further  effect  on 
and    after    the    first    day    of   January,    1970. 

Tenth.  It  is  also  expressly  agreed  and  under- 
stood by  and  between  the  parties  hereto,  that 
In  the  event  of  any  of  the  covenants  or  condi- 
tions herein  contained  being  or  being  held  In- 
valid or  void,  such  invalidity  or  voidness  shall 
in  no  way  affect  any  valid  covenant  or  coudltion 
herein    contained. 

And  It  Is  further  covenanted  and  agreed  that 
upon  the  breach  of  any  of  the  foregoing  condi- 
tions and  restrictions,  prior  to  the  first  day  of 
January,  1970,  that  the  title  to  said  premises 
shall  immediately  revert  to  and  vest  In  the  said 
party  of  the  first  part,  his  heirs  or  representa- 
tives, and  he  shall  be  entitled  to  the  immediate 
possession  thereof;  but  such  reversion  shall  not 
affect  the  lien  of  any  mortgage  which  In  good 
faith  may  then  be  existing  upon  said  property, 
but  such  mortgage  shall  remain  a  valid  encum- 
brance  thereon;    and   provided   further,   that   the 


THE  LAW  OF  REAL  ESTATE  85 

mortjsragee,  or  his  successors  in  interest,  irhether 
by  purchase  or  otherwise,  siiull  be  bound  by  the 
covenants   herein   contained. 

ACKNOWLEDGMENT  AND  PROOF 
OF  INSTRUMENTS. 

Definition. — To  acknowledge  an  in- 
strument is  to  appear  and  admit  or 
avow,  under  oath,  before  a  proper  offi- 
cer or  court,  that  the  person  so  appear- 
ing and  taking  the  oath  is  the  person 
who  executed  the  instrument,  and  that 
the  signature  is  his  signature,  or  that 
he  authorized  it  to  be  done  and  sub- 
scribed for  him,  for  the  purpose  of  hav- 
ing a  certificate  attached  wdiich  will 
qualify  the  instrument  to  be  admitted 
in  evidence,  or  to  be  recorded,  or  both, 
without    further   proof    of    genuineness. 

Acknov^ledgment  or  Proof  of  Instru- 
ments Necessary  Before  Recording. — 
Before  a  deed,  or  contract  of  sale  of  real 
property,  or  other  instrument,  can  be 
recorded,  it  must  be  acknowledged  or 
proved  before  a  person  authorized  by 
law  to  take  such  acknowledgment  or 
proof.  The  instrument  can  then  be  pre- 
sented to  the  county  recorder  to  be 
spread  upon  the  public  records  at  any 
time  thereafter  whenever  it  may  be  de- 
sired to  do  so. 


86  THE  LAW  OP  REAL  ESTATE 

Who  May  Take  Acknowledgments  or 
Proof  of  Instruments. — The  proof  or 
acknowledgment  of  an  instrument  may 
be  made  at  any  place  within  this  state 
before  a  justice  of  the  supreme  court, 
or  a  clerk  of  the  same,  or  a  judge  of  a 
superior  court. 

Within  the  city,  county,  city  and 
county,  or  township,  for  which  the  offi- 
cer was  appointed  or  elected,  before 
either  a  notary  public;  a  justice  of  the 
peace;  a  county  recorder;  a  court  com- 
missioner; a  clerk  of  a  court  of  record. 

Or,  when  any  of  the  officers  men- 
tioned are  authorized  by  law  to  ap- 
point a  deputy,  the  acknowledgment  or 
proof  may  be  taken  by  such  deputy,  in 
the   name   of   his  principal. 

Forms  for  Acknowledgment  of  In- 
struments.— The  majority  of  instruments 
are  acknowledged  before  notaries.  Many 
of  them  are  not  attorneys,  and  a  con- 
siderable number  have  but  limited  ex- 
perience. They  are  supposed  to  have 
proper  forms  for  acknowledgments,  but 
it  is  just  as  well  to  read  them  over  care- 
fully to  see  if  they  comply  with  the  pro- 
visions of  the  law. 

An  officer  taking  the  acknowledgment 
of  an  instrument  must  endorse  thereon. 


THE  LAW  OF  REAL  ESTATE  87 

or  attach  thereto,  a  certificate  substan- 
tially as  follows,  together  with  an  im- 
pression of  his  seal,  and  the  date  when 
his   commission  expires,   if  a  notary: 

ACKNOWLEDGMENT    OF    INSTRIBIENT 
State  of  California, 

88. 

County  of  Inyo, 

On  this  (twentieth  day  of  June,  in  the  year 
nineteen  hundred  and  fifty),  before  me  (William 
W'atklns),  a  notary  public  in  and  for  said  coun- 
ty, reHlding*  therein,  duly  commissioned  and 
■vrorn,  personally  appeared  (Lemuel  Lewis)  and 
(Lucy  Lewis),  known  to  me  to  be  the  persons 
whose  names  are  subscribed  to  the  within  in- 
strument, and  acknowledged  to  me  that  they 
executed   the   same. 

Witness   my  hand  and   official   seal. 

(Seal)  (WILLIAM    AA^ATKI\S), 

Notary  Public  in  and  for  said  county. 

My    commission    expires: 

(Date    when    it    expires). 

The  acknowledgment  of  an  instru- 
ment must  not  be  taken  unless  the  offi- 
cer taking  it  knows,  or  has  satisfactory 
evidence,  on  the  oath  or  affirmation  of  a 
credible  witness,  that  the  person  making 
such  acknowledgment  is  the  individual 
who  is  described  in  and  who  executed 
the  instrument;  or,  if  executed  by  a 
corporation,  that  the  person  making 
such  acknowledgment  is  the  president 
or  secretary  of  such  corporation,  or 
other  person  who  executed  it  on  its  be- 
half. 

If   the  officer   taking  the   acknowledg- 


88  THE  LAW  OF  REAL  ESTATE 

ment  is  not  personally  acquainted  with 
the  party  executing  the  instrument,  it 
is  his  duty  to  demand  a  credible  witness 
whom  he  knows.  The  latter  part  of  the 
form  should  then  be  changed  to  read 
like  this: 

Personally  appeared  (So  and  So>,  proved  to 
me  on  the  oath  of  (Andrew  Ackerman),  a  credi- 
ble ^vitness,  to  be  the  persons  Tfhose  names  are 
subscribed  to  the  within  instrument,  and  ac- 
knowledged to  me  that  they  executed  the  same. 

If  the  execution  of  the  instrument  is 
by  a  corporation,  the  form  should  read 
like  this : 

Personally  appeared  (So  anfl  So),  kno-wn  to 
me  to  be  the  (president),  and  (So  and  So),  know^n 
to  me  to  be  the  (secretary,  or  whatever  author- 
iiKed  officer)  of  the  cornoration  described  in  and 
that  executed  the  within  instrument,  and  known 
to  me  to  be  the  persons  v^ho  executed  the  ^vithin 
instrument  on  behalf  of  the  corporation  therein 
named,  end  acknoT»-ledgred  to  me  that  such  cor- 
poration  executed  the  same. 

If  the  instrument  is  executed  by  a 
person  under  a  power  of .  attorney,  the 
language  of  the  form  should  be  changed 
to  read  like  this: 

Personally  appeared  (So  and  So),  known  to 
me  to  be  the  person  whose  nante  is  subscribed 
to  the  within  instrument  as  the  attorney  in  fact 
of  (Byron  Booth),  and  acknowledged  to  me  that 
he  subscribed  the  name  of  (Byron  Booth)  there- 
to as  nrincipal,  and  his  o^vn  name  as  attorney 
in   fact. 

Any  acknowledgment  taken  outside 
this   state   in   accordance  with   the   laws 


THE  LAW  OF  REAL  ESTATE  89 

of  the  place  where  the  acknowledgment 
is  made,  shall  be  sufficient  in  this  state 
without  further  acknowledgment  within 
this  state. 

RECORDING  DEED. 

Effect  of  Recording  or  Non-Record- 
ing.— Provision  is  made  by  the  law  of 
the  state  for  the  recording  or  spreading 
upon  the  public  records  of  all  deeds  or 
other  instruments  in  any  way  affecting 
real  property,  at  the  option  of  the  inter- 
ested parties.  The  recordation  of  a  deed 
is  not  compulsory.  It  is  done  for  the 
simple  purpose  of  giving  public  notice 
of  the  transaction,  and  of  the  interests 
acquired  thereby. 

An  unrecorded  deed  is  valid  between 
the  parties ;  it  has  the  same  force  and 
effect  as  if  recorded.  An  unrecorded 
deed  is  void  only  as  to  creditors  and 
subsequent  bona  fide  purchasers  or  en- 
cumbrancers in  good  faith  without  no- 
tice. That  is  to  say,  if  Jones  sells  his 
property  to  Brown,  and  Brown  does  not 
record  the  deed,  the  creditors  of  Jones, 
or  subsequent  purchasers  from  him,  if 
he  were  dishonest  enough  to  sell  the 
property  again,  would  have  a  valid  lien 
against  the  property  if  their  judgments 


90  THE  LAW  OF  REAL  ESTATE 

or  deeds  were  recorded  before  Brown's; 
provided,  of  course,  they  had  no  per- 
sonal or  actual  knowledge  of  the  fact 
that  the  property  had  been  previously 
sold  to  the  latter.  In  other  words,  so 
long  as  the  property  stands  on  the  pub- 
lic records  in  Jones'  name,  the  law  pre- 
sumes it  to  belong  to  him  so  far  as  all 
other  persons  besides  himself  and  his 
grantee  are  concerned. 

When  Instrument  Is  Deemed  to  Be 
Recorded. — An  instrument  is  deemed  to 
be  recorded  when,  after  being  duly  ac- 
knowledged, or  proved  and  certified,  it 
is  deposited  in  the  recorder's  office,  with 
the  proper  officer,  for  record. 

POWER    OF    ATTORNEY. 

Definition. — A  power  of  attorney  is 
an  authority  given  by  one  person  to 
another  to  transact  business  for  him  and 
in  his  name.  The  extent  of  the  author- 
ity is  limited,  of  course,  by  the  language 
of  the  instrument.  It  may  be  general 
to  transact  all  business,  or  special,  to  do 
a  certain  thing.  The  person  to  whom 
such  an  authority  is  given  is  called  an 
"attorney  in  fact." 

Power  of  Attorney  to  Transfer  Real 
Property. — The   owner   of   real   property 


THE  LAW  OF  REAL  ESTATE  91 

may  authorize  another  person  to  find  a 
purchaser  for  it,  and  execute  a  con- 
tract of  sale  thereof,  by  any  form  of 
simple  writing,  but  he  can  confer  au- 
thority to  make  the  actual  conveyance 
for  and  in  his  name  only  by  means  of  a 
written  power  of  attorney.  The  person 
named  in  the  instrument  then  has  power 
to  do  any  lawful  act  which  his  princi- 
pal could  do,  and  it  will  be  binding  upon 
the  principal  with  as  full  force  and  ef- 
fect as  if  done  by  the  principal  himself. 

When  an  attorney  in  fact  executes  an 
instrument  conveying  any  estate  in  real 
property  he  must,  however,  first  sub- 
scribe the  name  of  his  principal  to  the 
instrument,  followed  by  his  own  name 
as  attorney  in  fact. 

Must  Be  in  Writing. — Every  power  of 
attorney  must  be  in  waiting.  It  can- 
not be  given  verbally  under  any  cir- 
cumstances. 

Form  for  Power  of  Attorney. — The 
following  form  for  the  purpose  of  dele- 
gating power  to  sell  and  transfer  real 
property  to  an  attorney  in  fact  is  well 
adapted  to  the  purpose.  It  is  designed 
to  be  signed  by  both  husband  and  wife, 
which  is  generally  required.  Of  course, 
if  it  is  not  necessary  to  include  the  wife 


92  THE  LAW  OF  REAL  ESTATE 

she  can  be  left  out  of  it.  The  price  at 
which  the  property  is  to  be  sold  can  be 
inserted  in  the  form,  if  desired,  and  the 
attorney  in  fact  would  have  to  conform 
thereto. 

POWER  OF  ATTORNEY 

BE  IT  KXOAVX  that  (Thomas  Touilou)  and 
(Teresa  Tomlon),  his  >vife,  do,  by  these  pres- 
ents, constitute  and  appoint  (Timothy  Turpln) 
their  attorney  In  fact,  -n-ith  full  authority  to 
sell  and  convey,  and  to  receive  the  price  thereof, 
Tvithout  reservation  of  community  right,  or  of 
any  right  T*hatsoever,  the  follOAving  described 
real    property,    to-wit: 

(Describe   property,  same   as   in   the   deed). 

And  to  execute  a  good  and  sufficient  deed 
thereof  to  the  purchaser;  and,  generally,  to 
do  all  acts  necessary  for  conveying  as  complete 
a  title  thereto  as  the  grantors  of  said  power 
could  themselves  convey;  hereby  covenanting 
with  all  whom  it  may  concern  to  ratify  and 
confirm  all  lawful  acts  done  In  pursuance  of  this 
power  as  fully  to  all  intents  and  purposes  as 
though    done    in    their    own    proper    persons. 

(Signatures      ) 

Witness  our  hands  this  (fifteenth  day  of  Jan- 
uary,  1950). 

Executed  in  the  presence  of: 

(Xames   of  witnesses). 

Recording     Power     of     Attorney. — A 

power  of  attorney  to  transfer  real  prop- 
erty must  be  executed,  acknowledged 
and  recorded,  before  the  grant  is,  in 
order  to  make  the  conveyance  valid,  and 
also  to  keep  the  chain  of  title  perfect 
and  in  proper  sequence.  Otherwise 
there  would  be  no  public  evidence  of 
the  right  of  the  attorney  in  fact  to  make 
the  transfer. 


THE  LAW  OF  REAL  ESTATE  93 

Revoking  Power  of  Attorney. — When- 
ever, by  reason  of  the  sale  of  the  prop- 
erty by  the  owner  himself,  or  for  any 
other  valid  reason,  it  is  desired  to  re- 
voke a  power  of  attorney,  the  only  man- 
ner in  w^hich  it  can  be  done  is  by  an- 
other instrument  formally  withdrawing 
or  revoking  such  power,  which  must 
also  be  acknowledged  and  recorded  in 
the  same  manner  and  in  the  same  coun- 
ty recorder's  office  in  which  the  instru- 
ment containing  the  power  of  attorney 
was  recorded.  This  is  a  very  important 
matter,  which  should  always  be  attend- 
ed to  promptly  when  the  occasion  for  it 
arises;  for  until  it  is  done  the  authority 
of  the  attorney  in  fact  remains  in  full 
force  and  effect,  which  might  lead  to 
serious  complications  if  the  property 
had  been  otherwise  disposed  of  with- 
out his  knowledge. 

Form  for  Revoking  Power  of  Attor- 
ney.— The  following  form,  easily  adapt- 
able to  the  circumstances,  is  about  what 
is  required  for  the  purpose : 

BK  IT  KNOAVIV  that,  whereas  rre  (Thomas 
Tonilon),  and  (Teresa  Tomlon),  his  wife,  did,  by 
warrant  and  povter  of  attorney,  in  writing,  bear- 
ingr  date  the  (fifteenth  day  of  January,  1950), 
nial^e,  constitute,  and  appoint  (Timothy  Tur- 
pin)  our  true  and  lawful  attorney  for  the  pur- 
poses and  with  the  powers  therein  set  forth,  as 
will  more  fully  appear  by  reference  thereto,  or 


94  THE  LAW  OF  REAL  ESTATE 

to    the    record    therof,   niade    on    the    (date    «'hen 
recorded,    if   recorded,    in    boolc    number  ,    of 

po>ver8    of  attorney,  page  ,   in   the  office   of 

the  county  recorder  of  the  county  of  ). 

No'w,  therefore,  we  the  said  g;rantors  of  the 
power  of  attorney  above  mentioned,  for  divers 
good  causes  and  considerations  us  hereunto 
moving,  have  revohied,  countermanded,  annulled, 
and  made  void,  and  by  these  presents  do  revolve, 
countermand,  annul,  and  malice  void  the  said 
-tvarrant  or  power  of  attorney,  and  all  power 
and  authority  thereby  given,  or  intended  to  be 
given,  to  tlie  said    (Timothy  Turpin). 

( Signatures     ) 

"Witness  our  hands  this   (date). 

Executed    in    the    presence    of: 

(Names    of    witnesses). 

DEED    BY  MINOR. 

When  Void,  When  Voidable. — A  mi- 
nor cannot,  under  the  age  of  eighteen, 
make  any  valid  conveyance  of  any  inter- 
est in  real  property. 

The  contract  of  a  minor  over  the  age 
of  eighteen  is  not  void,  but  is  voidable; 
that  is,  he  may  disaffirm  or  repudiate 
it  at  any  time  before  majority,  or  with- 
in a  reasonable  time  thereafter. 

WITNESSES. 

Not  Required,  But  Well  to  Have 
Them. — The  law  does  not  require  that 
there  shall  be  witnesses  to  a  grant  or 
deed  of  real  property,  but  it  is  well  to 
have  at  least  one  witness,  for  the  pur- 
pose of  more  conveniently  proving  the 
instrument,  if  necessary.     Better  still  to 


THE  LAW  OF  REAL  ESTATE  95 

have  two,  so  that  either  may  testify,  if 
needed,  should  the  other  be  unable  to 
appear. 

SEALS. 

Not  Necessary  to  Use  Them.— There 
is  no  distinction  in  this  state  between 
a  sealed  and  an  unsealed  instrument, 
and  it  is  not  necessary  to  use  either  a 
wafer,  or  a  pen  scroll  in  any  form,  after 
a  signature  to  a  grant  or  deed  of  real 
property,  to  represent  a  seal.  Neither  is 
it  necessary  to  say,  "Witness  my  hand 
and  seal";  ''Witness  my  hand"  is  suffi- 
cient. 

ITEMS 

Useful     Things    to     Remember. — The 

grant  should  he  clear  and  distinct,  as 
free  from  uncertainty  as  possible.  When 
the  terms  are  doubtful,  it  is  construed  in 
favor  of  the  grantee  and  against  the 
grantor. 

The  grant  must  be  complete  before  it 
is  delivered.  Alterations  or  filling  out  of 
the  blanks  after  delivery,  will  not  rem- 
edy defects,  or  change  the  original  con- 
ditions. 

The  grantor  should  sign  his  name  pre- 
cisely as  it  is  written  in  the  body  of  the 
grant. 


96  THE  LAW  OF  REAL  ESTATE 

The  grant  takes  effect  only  upon  its 
delivery  by  the  grantor  to  the  grantee. 

Delivery  is  absolutely  essential  to  the 
validity  of  a  grant.  There  is  actual  de- 
livery when  it  is  actually  placed  in  the 
hands  of  the  grantee,  and  there  is  con- 
structive delivery  when  it  is  placed  under 
control  of  the  grantee,  where  he  can 
readily  obtain  actual  possession.  Either 
is  sufficient  delivery. 

A  grant  duly  executed  is  presumed  to 
have  been  delivered  at  its  date,  and  in 
absence  of  proof  to  the  contrary,  such 
delivery  will  be  taken  for  granted. 

Redelivering  a  grant  to  the  grantor 
or  cancelling  or  destroying  the  same, 
does  not  operate  to  re-transfer  the  title. 
In  all  cases  a  new  instrument  must  be 
made  out,  transferring  the  title  back  to 
the  grantor,  and  properly  signed  and  ac- 
knowledged. 

Unless  the  grant  be  delivered  during 
the  lifetime  of  the  grantor  it  will  te  of  no 
effect.  But  the  delivery  may  be  either 
to  the  grantee  himself,  or  to  some  third 
person,  with  instructions  to  deliver  the 
instrumient  to  the  g^rantee  at  some  future 
time.    The  latter  is  called   an   escrow. 


CHAPTER   V. 


LANDLORD  AND  TENANT 


If  one  may  judge  by  the  great  amount 
of  space  devoted  to  this  subject  in  the 
law  books,  and  in  the  reports  of  the  de- 
cisions of  the  courts,  there  are  but  few- 
questions  which  have  given  more  trouble 
in  the  solving  than  those  involved  in  the 
legal  relations  between  landlord  and  ten- 
ant ;  and  it  may  further  be  said  that  the 
general  public,  as  a  rule,  is  woefully  de- 
ficient in  its  understanding  of  the  laws 
regulating  these  relations. 

This  is  not  much  to  be  wondered  at 
where  there  are  so  many  modifications 
and  extensions  of  the  general  principles 
underlying  this  relationship  as  are 
to  be  found  in  different  jurisdictions,  and 
so  many  contrariwise  rulings  thereon. 

Therefore,  perhaps  no  subject  will  be 
of  more  practical  importance  to  a  large 
number  of  people  than  this  one  concern- 
ing landlord  and  tenant,  their  rights  and 
obligations  under  the  law,  the  making 
of   leases   and   the   manner   or  mode   of 


98  THE  LAW  OF  REAL  ESTATE 

using  leased  or  hired  property,  since  the 
far  greater  portion  of  mankind  lives  in 
or  otherwise  occupies  the  premises  of 
another. 

In  California  the  common  law  prac- 
tice has  been  changed  in  many  instances 
by  statute ;  therefore  in  this  article  an 
endeavor  will  be  made  to  make  as  plain 
as  possible  just  what  is  the  law  and  the 
accepted  practice  in  this  state,  irrespect- 
ive of  what  it  may  be  in  other  places. 

WRITTEN   AND    VERBAL   LEASES 

Where  Term  is  for  More  Than  Year 
Lease  Must  Be  in  Writing. — A  lease  for 
a  term  LONGER  than  ONE  YEAR 
must  be  in  writing,  and  of  course  must 
be  signed  by  all  parties  to  it. 

Assignment  or  Sublease  of  Written 
Lease. — Where  lease  is  in  writing,  as- 
signment or  sublease,  or  lessor's  con- 
sent to  assign  or  sublease  should  be  in 
writing  also. 

Where  Term  Does  Not  Exceed  One 
Year  Lease  May  Be  Verbal. — A  lease  for 
a  period  NOT  EXCEEDING  ONE 
YEAR  may  be  verbal,  and  it  w^ill  have 
all  the  effect  and  be  just  as  valid  as  if 
in  writing. 

Assignment    or    Sublease     of     Verbal 


THE  LAW  OF  REAL  ESTATE  99 

Lease. — Where  lease  is  verbal,  assign- 
ment or  sublease,  or  lessor's  consent  to 
assign  or  sublease,  may  be  verbal  unless 
otherwise  provided. 

LEASE  BY  AGENT 

Authority    Must    Be   in    Writing. — A 

lease  made  by  the  agent  of  the  owner  is 
of  as  full  force  and  effect  as  if  made  by 
the  owner  himself;  but  in  all  cases  where 
the  law  requires  the  lease  to  be  in  writ- 
ing the  AGENT'S  AUTHORITY  to 
execute  the  lease  must  also  be  IN 
WRITING,  and  signed  by  the  owner, 
.or  some  one  empowered  to  act  for  him. 
Otherwise  it  will  be  invalid. 

W^here  the  lease  is  a  verbal  one  the 
agent's  authority  to  execute  it  may  also 
be  verbal. 

A  mere  undertaking  upon  the  part  of 
the  agent,  however,  to  find  a  tenant  for 
the  owner,  where  the  instrument  is  to 
be  executed  by  the  owner,  need  not  be 
in  writing. 

AVhere  the  agent  is  vested  lawfully 
with  authority  to  make  the  lease,  and 
also  with  general  power  to  conduct  the 
business  connected  with  the  hiring,  no- 
tices   to   the  tenant    to    pay  rent,    or  to 


100    THE  LAW  OF  REAL  ESTATE 

quit,  or  otherwise,  are  also  as  valid  as  if 
given  by  the  owner. 

Lease  by  Minor. — A  minor  cannot,  un- 
der the  age  of  eighteen,  make  any  valid 
lease  of  any  interest  in  real  property. 

The  contract  of  a  minor  over  the  age 
of  eighteen  is  not  void,  but  is  voidable ; 
that  is,  he  may  disaffirm  or  repudiate  it 
at  any  time  before  majority,  or  within 
a   reasonable   time  thereafter. 

LIMIT  OF  TERM  OF  LEASE. 

Of  Agricultural  Land. — No  lease  or 
grant  of  land  for  agricultural  or  horticul- 
tural purposes,  in  which  shall  be  re- 
served any  rent  or  service  of  any  kind, 
shall  be  valid  for  a  longer  period  than 
FIFTEEN  YEARS. 

Of  City  Lots. — No  lease  or  grant  of 
any  town  or  city  lot,  in  which  shall  be 
reserved  any  rent  or  service  of  any  kind, 
shall  be  valid  for  a  longer  period  than 
NINETY-NINE  YEARS. 

Of  Property  of  Municipality,  Minor, 
or  Incompetent  Person. — Provided,  that 
the  property  of  any  municipality,  or  any 
minor  or  incompetent  person,  shall  not 
be  leased  for  a  longer  period  than  TEN 
YEARS. 


THE  LAW  OF  REAL  ESTATE  101 

COMPUTING  TERM    OF  HIRING. 

Of  Property  Other  Than  Lodgings 
and  Dwelling  Houses. — Unless  the  in- 
tention is  otherwise  expressed  at  the 
time  of  hiring,  real  property,  other  than 
lodgings  and  dwelling  houses,  is  pre- 
sumed to  be  hired  for  one  year,  unless 
possibly  there  is  a  local  custom  to  the 
contrary. 

To  illustrate :  If  a  merchant  rents  a 
store  at  so  much  per  month,  without 
anything  being  said  as  to  how  long  he 
will  retain  possession  of  it,  he  will  be 
presumed  to  have  taken  it  for  one  year, 
and  he  w^ill  be  liable  for  the  rent  for 
that  period  if  the  landlord  chooses  to 
hold  him  to  it.  But  if  at  the  time  of 
hiring  he  states  that  he  wdll  take  the 
store  from  month  to  month,  w^ithout  any 
definite  number  of  months  being  speci- 
fied, then  he  can  be  held  liable  for  one 
month  only,  if  he  gives  the  proper  no- 
tice of  his  intention  to  quit. 

The  same  rule  applies  to  any  property 
which  is  not  to  be  used  simply  for  resi- 
dence purposes. 

Of  Lodgings  and  Dwelling  Houses. — 
iDwelling  houses  and  lodgings  are  pre- 
sumed   to    be,    in    the   absence    of  any 


102    THE  LAW  OF  REAL  ESTATE 

agreement  to  the  contrary,  taken  for 
such  length  of  time  as  the  parties  adopt 
for  the  estimation  of  the  rent. 

To  illustrate :  If  the  rent  agreed  upon 
is  so  much  per  week,  then  the  hiring  is 
presumed  to  be  by  the  week ;  if  the  rent 
is  so  much  per  month,  then  the  hiring  is 
by  the  month ;  if  so  much  per  year,  then 
the  hiring  is  by  the  year.  In  the  ab- 
sence of  any  agreement  as  to  the  length 
of  the  period  of  the  hiring,  or  of  the 
rent,  or  the  manner  in  which  it  is  to  be 
estimated,  the  hiring  is  presumed  to  be 
by  the  month. 

PAYMENT   OF  RENT. 

Is  Payable  By  Law  at  End  of  Period. 

— In  the  absence  of  any  agreement  as 
to  when  the  rent  is  to  be  paid,  the  law 
prescribes  that  it  is  not  due  until  the 
expiration  of  the  period  of  hiring;  that 
is,  at  the  end  of  the  day,  week,  month, 
or  year  for  which  the  premises  are  pre- 
sumed to  be  taken  according  to  the  rule 
for  estimating  the  period  of  hiring. 

Local  custom,  however,  regulates  to  a 
large  extent  the  manner  of  paying  the 
rent,  and  in  case  of  disputes  or  actions 
for  the  collection  of  the  same,  the  courts 
will    take    into    account   the    customary 


THE  LAW  OF  REAL  ESTATE  103 

practice  in  the  community  in  which  the 
premises  are  situated. 

The  landlord  has  the  right,  notwith- 
standing, to  demand  his  rent  IN  AD- 
VANCE when  he  stipulates  it  shall  be 
so  paid  at  the  time  of  the  hiring,  but  not 
otherwise. 

All  of  which  shows  that  this  matter, 
like  all  other  provisions  of  the  tenancy, 
should  be  the  subject  of  mutual  under- 
standing at  the  time  of  the  leasing  or 
hiring. 

DEFAULT  IN  RENT. 

Lease  May  Be  Forfeited  For. — Where 
the  rent  is  not  paid  at  the  specified  time 
the  landlord  may  declare  the  lease  for- 
feited if  he  so  chooses.  The  method  of 
procedure  and  the  necessary  form  for 
notice  will  be  found  under  the  heading 
of  '^Forfeiture  of  Lease." 

Or  Landlord  May  Bring  Action  For. 
— If  the  landlord  does  not  desire  to  have 
the  lease  declared  forfeited  he  may,  at 
his  option,  bring  an  action  for  the  col- 
lection of  the  amount  which  is  in  de- 
fault. 

RAISING  THE  RENT. 
When  and  How  Landlord  May  Change 


104    THE  LAW  OF  REAL  ESTATE 

Terms  of  Lease. — In  all  tenancies  of 
lands  or  buildings  FROM  T^IONTH  TO 
MONTH  the  landlord  may,  upon  giv- 
ing notice  in  writing  at  least  THIRTY 
DAYS  before  the  expiration  of  the 
month,  raise  the  rent  or  otherwise 
change  the  terms  or  conditions  of  the 
lease,  to  take  effect  at  the  expiration  of 
the  month.  The  notice  must  be  given 
at  least  full  thirty  days  before  the  month 
is  up,  and  the  time  should  be  very  care- 
fully computed;  otherwise  it  will  be  of 
no  avail. 

If  the  tenant  continues  to  occupy  the 
premises  after  receiving  such  notice  he 
is  considered  to  have  accepted  its  terms 
and  becomes  bound  by  them :  it  is  in 
fact  a  new  contract  between  the  lessor 
and  the  lessee. 

The  terms  of  a  lease  from  month  to 
month  may,  of  course,  be  changed  by 
the  mutual  consent  of  the  parties  with- 
out such  notice. 

Several  suits  Avhich  have  been  brought 
in  court  would  seem  to  indicate  that 
some  people  have  an  idea  that  the  terms 
of  any  lease  may  be  changed  by  giving 
the  thirty  days'  notice,  as  aforesaid. 
Such,  however,  is  not  the  case.  This 
provision    of    the    law    applies    only    to 


THE  LAW  OF  REAL  ESTATE     105 

temporary  tenancies  from  month  to 
month,  where  there  is  no  agreement  as 
to  the  terms  for  more  than  one  month 
at  a  time;  therefore  changing  the  terms 
of  a  lease  for  a  specified  term  is  not 
thereby  authorized. 

Neither  could  the  rent  be  raised  by 
giving  such  notice  where  there  is  an 
agreement  that  the  tenant  could  have 
the  premises  at  a  certain  price  as  long 
as  he   remained  in   possession. 

Form  for  Notice  of  Raising  the  Rent. 
— Any  form  of  language  will  do,  but  the 
following  is  explicit  and  definite  for  the 
purpose : 

NOTICE    OF    RAISING    THE    RENT. 
To    (name   of  tenant): 

You  are  hereby  notified  that  at  the  expirailion 
of  the  mouth  of  your  tenaney  '»vh5eh  oeeurw  on 
the  (thirty-first  day  of  July,  IftoO),  the  terms 
of  the  agrreenient  under  '»vhieh  you  oeeupy  the 
premises  situate  (liere  deseribe  the  ureniJses 
suffieiently  to  identify  tlie  ones  meant  in  the 
notiee;  if  in  a  eity,  the  street  and  nrnvber.  or 
tJie  name  of  the  building,  ^vill  do),  under  ten- 
ancy from  month  to  month,  •»vill  be  ehansed  as 
follows:  The  monthly  rent  thereof  will  be 
(forty)  dollars  per  month,  payable  (monthly  in 
advance),  on  the  (first)  day  of  each  and  e^ery 
month  you  continue  to  hold  possession  of  the 
said  premises  after  the  expiration  of  the  month 
of  your  tenancy  aforesaid,  instead  of  the  sum 
of  (thirty)  dollars  per  mouth  heretofore  i>aid 
by   you. 

(  Signature ) 

(Date ) 


106         THE  LAW  OF  REAL  ESTATE 

LETTING  PARTS  OF  ROOMS. 

Is  Penalized  By  Statute. — One  who 
hires  part  of  a  room  for  a  dwelling  is 
entitled  to  the  whole  of  the  room,  not- 
withstanding any  agreement  to  the  con- 
trary ;  and  if  a  landlord  lets  a  room  as  a 
dwelling  for  more  than  one  family,  the 
person  to  whom  he  first  lets  any  part 
of  it  is  entitled  to  possession  of  the 
whole  room  for  the  term  agreed  upon, 
and  if  the  landlord  violates  this  regula- 
tion, he  is  penalized  to  the  extent  that 
every  tenant  in  the  building,  under  the 
same  landlord,  is  relieved  from  all  obli- 
gation to  pay  rent  to  him  Avhile  such 
double  letting  of  any  room  continues. 

renevn^al  of  hiring. 

Of  Tenancy  from  Month  to  Month,  or 
from  Year  to  Year. — The  word  "hiring" 
as  here  used  is  intended  to  designate  the 
letting  of  premises  for  TEMPORARY 
or  UNSPECIFIED  periods,  as  from 
week  to  week,  month  to  month,  or  year 
to  year;  where  there  is  no  agreement 
or  lease  for  a  fixed  or  definite  time. 
Where  no  time  lease  is  given  practically 
all  rental  property  is  nowadays  let  upon 
the    month  to  month    or    year    to   year 


THE  LAW  OF  REAL  ESTATE  107 

plan.  Such  tenancies  are  continuing 
ones.  That  is,  if  the  tenant  rents  prem- 
ises by  the  week,  or  month,  or  year,  he 
is  presumed  by  law  to  have  taken  them 
INDEFIxNITELY;  in  other  words,  he 
impliedly  obligates  himself  to  remain  in 
possession  thereof  until  such  time  as 
either  of  the  parties  gives  notice  to  the 
other  of  his  intention  to  terminate  the 
hiring. 

Therefore  the  tenant  cannot  lawfully 
vacate  until  he  has  given  the  landlord 
notice  of  his  intention  to  do  so,  and  the 
landlord  cannot  put  the  tenant  out  until 
he  has  given  him  notice  to  quit.  And 
until  such  notice  of  his  intention  to  quit 
has  been  given  by  the  tenant  he  is  lia- 
ble for  the  rent,  even  if  he  has  vacated 
the  premises. 

RENEWAL  OF  LEASE. 

Has  Reference  to  Hiring  for  Specified 
Period  Only. — This  heading  refers  only 
to  the  renewal  of  leases  where  the  hir- 
ing is  for  a  SPECIFIED  OR  DEFIN- 
ITE TERM.  The  legal  name  for  such 
a  lease  is  an  "estate  for  years,"  com- 
monly spoken  of  as  a  lease  for  years. 
And  although  the  expression  would  seem 
to  imply  a  term  running  into  a  number 


108    THE  LAW  OF  REAL  ESTATE 

of  years,  such  is  not  the  case.  A  lease 
for  one  year,  or  one  month,  or  one  week, 
or  even  one  day,  is  as  much  a  lease  for 
years,  or  an  estate  for  years,  as  a  lease 
for  ten  years  would  be.  What  is  really 
meant  by  the  expression,  then,  is  a  hir- 
ing for  a  fixed  time,  no  matter  how  long 
or  how  short,  as  distinguished  from  a 
hiring  for  an  indefinite  or  unfixed  time; 
in  the  former  case  the  hiring  expiring 
at  the  end  of  the  term  thereof  without 
notice,  while  in  the  latter  case  the  hiring 
can  be  terminated  only  by  giving  no- 
tice. Thus,  a  hiring  FOR  A  IMONTPI 
is  for  a  fixed  and  definite  time,  for  one 
month  only,  and  terminates  at  the  end 
thereof,  without  notice  from  the  land- 
lord to  quit,  or  from  the  tenant  of  his 
intention  to  quit ;  but  a  hiring  FROM 
MONTH  TO  MONTH  is  for  an  indefi- 
nite time,  continuously,  until  interrupt- 
ed or  discontinued  by  notice  by  either 
landlord  or  tenant. 

There  are  two  methods  by  which 
leases  for  years  are  renewed,  as  follows: 

1.  By  Express  Covenant  in  the  Lease. 
' — The  terms  of  a  lease  for  a  specified 
term  may  provide  for  its  renewal  at  the 
end  of  the  term  at  the  option  of  the 
lessee.     The  original  lease  need  not  defi- 


THE  LAW  OF  REAL  ESTATE  109 

nitely  fix  all  the  terms  of  the  new  lease, 
so  long  as  it  furnishes  definite  methods 
of  arriving  at  the  intention  of  the  parties 
when  the  time  comes  to  renew,  as  by 
valuation,  arbitration,  or  appraisal.  It 
should,  however,  be  precise  as  to  the 
term,  and  as  much  so  as  to  the  other 
provisions   as   circumstances    will   admit. 

The  lessee  must  give  the  lessor  notice 
that  he  desires  to  exercise  his  option  to 
renew  the  lease  BEFORE  THE  ORIG- 
INAL TERM  EXPIRES,  or  he  will  for- 
feit all  his  rights  under  the  option;  and 
unless  the  lessee  does  exercise  his  right 
by  giving  notice  of  his  desire  to  renew, 
he  cannot  be  held  for  an  additional  term. 
Thus  the  option  is  not  binding  on  either 
party  until  it  is  exercised. 

The  lease  may,  of  course,  provide 
HOW  and  WHEN  the  notice  of  the  ten- 
ant's desire  to  renew  shall  be  given,  and 
he  will  be  required  to  conform  to  its 
terms  in  that  respect 

2.  By  Holding  Over  of  Tenant.— 
Where  the  tenant  in  possession  of  prem- 
ises on  a  lease  or  hiring  for  a  specified 
time  holds  over  or  continues  in  possses- 
ion  after  the  expiration  of  his  term  with- 
out any  new  agreement  as  to  how  long 
he   shall  remain,  and   the  lessor  accepts 


110    THE  LAW  OF  REAL  ESTATE 

rent  from  him,  he  will  be  presumed  to 
be  staying  on  UNDER  THE  SAME 
TERMS  AND  CONDITIONS  AS  BE- 
FORE, the  payment  and  acceptance  of 
the  rent  evidencing  the  implied  agree- 
ment between  the  parties  to  that  effect; 
therefore  the  law  presumes  the  hiring  to 
be  renewed,  subject  to  and  according  to 
all  the  provisions  of  the  lease  which  has 
expired,  except  as  to  the  length  of  the 
term.  That  is,  the  term  for  which  the 
lease  is  presumed  to  be  renewed  is  limit- 
ed to  ONE  MONTH  ONLY  when  the 
rent  is  payable  monthly;  to  ONE  YEAR 
when  the  rent  is  payable  quarterly,  half- 
yearly,  or  yearly.  But  in  no  case  is  the 
lease  presumed  to  be  renewed  for  more 
than  one  year  at  a  time. 

In  other  words,  when  the  lessee  holds 
over,  with  the  permission,  either  express 
or  implied,  of  the  lessor,  after  his  term 
has  expired,  he  becomes  a  tenant  either 
from  month  to  month  or  from  year  to 
year,  according  to  the  manner  of  paying 
the  rent.  The  tenancy  thus  becomes 
subject  to  termination  at  the  will  of 
either  party  at  the  expiration  of  each  re- 
curring monthly  or  yearly  period  by  giv- 
ing thirty   days'   notice   as   explained    in 


THE  LAW  OF  REAL  ESTATE  111 

detail  under  the  heading  of  "Termination 
of  Hiring.'' 

Landlord  Must  Either  Accept  Hold- 
over as  Tenant  or  Put  Him  Out. — It 
therefore  necessarily  follows  that  where 
the  tenant  holds  over  as  aforesaid  the 
landlord  must  either  treat  him  as  a  ten- 
ant or  as  a  trespasser;  he  must  either 
tell  him  peremptorily  to  get  out  or  else 
acknowledge  him  as  a  tenant  under  the 
same  terms  as  before.  And  where  the 
landlord  accepts  the  rent  (or  by  leaving 
the  tenant  in  possession  thereby  implies 
that  he  will  accept  it  when  due),  it  is 
sufficient  acknowledgment  of  his  intent 
to  renew  the  tenancy  as  presumed  by 
law,  and  he  is  bound  thereby. 

The  tenant  holding  over  has,  however, 
no  such  election  as  to  his  status;  his 
mere  continuance  in  possession  for  even 
a  day  over  his  term  fixes  him  as  a  tenant 
for  another  month  or  year,  as  the  case 
may  be,  if  the  landlord  thinks  proper  to 
insist  upon  it.  He  should  therefore  va- 
cate the  premises  by  the  end  of  the  last 
day  of  his  term  if  he  does  not  wish  to  be 
held  liable  for  another  term. 

When  Holdover  Becomes  Trespasser. 
— But  where  the  lessee  for  a  specified 
term  holds  over  AGAINST  THE  CON- 


112  THE  LAVv^  OF  REAL  ESTATE 

SENT  of  the  lessor  he  is  then  simply  a 
trespasser  without  any  rights  in  the 
premises  whatsoever.  In  such  case  he  is 
not  entitled  to  thirty  days  notice  to  va- 
cate, but  may  be  treated  as  a  trespasser, 
subject  to  an  action  for  ejectment,  or  for 
unlawful  detainer,  at  the  option  of  the 
lessor. 

Exception  as  to  Renewal  of  Lease  of 
Agricultural  Lands. — \\  here  the  lessee 
of  agricultural  lands  has  remained  in 
possession  thereof  for  more  than  SIXTY 
DAYS  after  the  expiration  of  his  term, 
without  notice  to  quit  or  demand  for 
possession  being  served  upon  him,  he 
shall  be  deemed  to  be  holding  the  prem- 
ises by  permission  of  the  lessor,  and  shall 
be  entitled  to  remain  in  possession  for 
a  FULL  YEAR,  under  the  terms  of  his 
lease. 

Likewise,  the  tenant,  by  holding  over 
for  more  than  the  sixty  days  aforesaid, 
shall  be  construed  as  thereby  CON- 
SENTING to  take  the  property  for  an- 
other year,   and  is  bound   for  that  time. 

Best  Way  to  Avoid  Disagreements. — 
The  best  way  to  avoid  any  disagreement 
or  misunderstanding  as  to  how  long  the 
lease  is  deemed  to  be  renewed  for  when 
the  tenant  holds  over  his  term  is  to  in- 


THE  LAW  OF  REAL  ESTATE  113 

sert  a  clause  like  this  in  the  lease,  which 
is  now  generally  done : 

''If  the  said  party  of  the  second  part 
shall  hold  over  said  term,  with  the  con- 
sent, express  or  implied,  of  the  said 
party  of  the  first  part,  such  holding  shall 
be  construed  to  be  a  tenancy  only  from 
month  to  month." 

With  such  a  clause  in  the  lease  there 
can  be  no  argument,  and  the  tenancy 
can  be  terminated  as  before  stated,  at 
any  time  at  the  will  of  either  party  by 
giving  the  required  thirty  days  notice. 

TERMINATION  OF  LEASE 

Four  Causes  Specified. — The  code  speci- 
fies four  causes  which  have  the  effect  of 
terminating  the  hiring  arbitrarily  without 
recourse  to  legal  process,  namely : 

1.  By  Ending  of  Term. — A  lease  ex- 
pires automatically  at  the  end  of  its 
term,  where  the  term  is  fixed  and  certain, 
and  agreed  upon. 

2.  By  Mutual  Consent  and  Surrender. 
— A  hiring  which  is  either  from  month 
ti  month  or  for  a  fixed  period  may  be 
cancelled  at  any  time  by  mutml  consent 
of  the  parties  and  surrender  of  the  prem- 
ises to  the  lessor. 

3.  When  Lessee  Acquires  Paramount 


114    THE  LAW  OF  REAL  ESTATE 

Title. — A  lease  is  extinguished  when  the 
lessee  acquires  a  title  which  is  superior 
to  that  of  the  lessor,  as  by  purchase  of 
the  leased  premises;  since,  being  then 
the  owner,  it  would  not  avail  him  any- 
thing to  pay  rent  to  himself. 

4.  By  Destruction  of  Premises. — The 
complete  destruction  of  the  premises  ac- 
cidentally by  the  elements  or  by  the  act 
of  God  cancels  completely  the  lease,  and 
the  relations  of  landlord  and  tenant 
which  existed  between  the  parties  are  at 
an  end,  in  the  absence  of  any  agreement 
to  the  contrary. 

Where  buildings  upon  leased  premises 
are  destroyed  by  fire  neither  the  land- 
lord nor  the  tenant  are  under  any  obliga- 
tions to  restore  them ;  and  if  the  land- 
lord should  restore  them  the  tenant  has 
no  claim  to  occupy  them  because  of  his 
previous  lease. 

These  facts  plainly  show  the  necessity 
of  incorporating^  the  desires  and  inten- 
tions of  the  parties  in  the  contract. 

HOW  LEASE   MAY  BE   TERMI- 
NATED 

Optional  With  the  Parties. — The  sec- 
tions under  the  preceding  heading  show 
how  a  lease  is  terminated  bv  law  with- 


THE  LAW  OF  REAL  ESTATE  115 

out  the  will  or  acquiescence  of  the  par- 
ties. Under  this  heading  is  shown  the 
circumstances  under  which  the  lease  is 
not  necessarily  terminated  but  MAY  BE 
TERMINATED  at  the  will  or  option  of 
cither  the  lessor  or  the   lessee. 

L  Upon  Violation  of  Obligations  by 
Lessor. — The  hiring  may  be  terminated 
when  the  lessor  does  not,  within  a  reas- 
onable time  after  request,  FULFILL 
HIS  OBLIGATION  to  secure  the  tenant 
in  his  quiet  possession  and  enjoyment  of 
the  premises,  or  put  them  in  good  con- 
dition, or  repair  them,  when  the  obliga- 
tion rests  upon  him  to  do  so. 

2.  Upon  Partial  Destruction  of  the 
Premises. — The  hirer  of  a  thing  may  ter- 
minate the  hiring  before  the  end  of  the 
term  agreed  upon  when  the  GREATER 
PART  of  the  thing  hired,  or  that  part 
which  was,  and  which  the  latter  had,  at 
the  time  of  the  hiring,  reason  to  believe 
was,  the  MATERIAL  INDUCEMENT 
to  the  hirer  to  enter  into  the  contract, 
perishes  from  any  other  cause  than  the 
want  of  ordinary  care  of  the  hirer. 

3.  Upon  Death  of  Either  Party.— A 
lease  for  an  UNSPECIFIED  term  is 
NOT  terminated  by  the  death  of  either 
party,  but  it    CAN     BE     BY    GIVING 


116    THE  LAW  OF  REAL  ESTATE 

NOTICE  to  the  survivor  of  the  death  of 
the  other.  Such  notice  must  state  the 
desire  of  the  representatives  of  the  de- 
ceased that  the  lease  be  terminated. 

But  a  lease  for  a  SPECIFIED  term  is 
NOT  TERMINATED  BY  THE 
DEATH  OF  EITHER  PARTY;  the 
contract  passes  on  to  the  executors  or 
administrators  of  the  deceased  as  an 
a>?ct  of  his  personal  estate. 

4. — Upon  Incapacity  to  Contract. — A 
lease  for  an  unspecified  term  can  also  be 
terminated  upon  the  incapacity  to  con- 
tract of  either  party,  by  reason  of  insan- 
ity or  other  cause,  upon  giving  notice  to 
the  other  party  of  the  desire  to  ter- 
minate. 

5.— Upon  Default  in  the  Rent.— The 
landlord  has  the  right  to  declare  the 
lease  forfeited  whenever  the  rent  is  not 
paid  according  to  the  terms  of  the  con- 
tract, or  as  the  law  provides  it  shall  be 
paid  in  the  absence  of  any  agreement. 

6.  Upon  Violation  of  Covenant  of 
Use  by  Lessee. — AVhere  premises  are  let 
to  be  used  for  a  PARTICULAR  PUR- 
POSE the  hirer  must  not  use  them  for 
any  OTHER  purpose;  if  he  does,  he  does 
so  at  his  peril.  He  is  liable  to  the  lessor 
for  all  damages  resulting  from  such  un- 


THE  LAW  OF  REAL  ESTATE  117 

lawful  use,  or  the  lessor  may  treat  the 
lease  as  thereby  rescinded.  And  if  in 
consequence  of  unlawful  use  the  prem- 
ises are  destroyed  by  fire,  the  tenant 
could  very  probably  be  held  for  damages 
for    such    destruction. 

Liability  for  Rent  Where  Lease  is 
Terminated. — Where  a  lease  is  terminat- 
ed before  its  expiration,  or  by  eviction, 
the  lessee  must  pay  the  due  proportion 
of  the  rental  for  such  use  as  he  has  had 
of  the  premises. 

TERMINATING  HIRING 

Landlord's  Notice  to  Quit. — If  the  hir- 
ing is  by  the  week  the  landlord  must 
give  the  tenant  a  week's  notice  to  quit; 
if  by  the  month  or  by  the  year,  thirty 
days  notice.  The  notice  must  in  all 
cases  be  IN  WRITING. 

There  is  much  misunderstanding  as  to 
how  the  time  of  the  required  notice  is  to 
be  computed,  and  an  endeavor  will  be 
made  to  make  it  plain. 

The  tenant  cannot  be  put  out  in  the 
middle  of  his  term,  therefore  the  notice 
must  be  served  the  full  number  of  days 
required  prior  to  the  expiration  of  his 
term. 

To     illustrate :     The    tenant     rents     a 


118    THE  LAW  OF  REAL  ESTATE 

house  or  a  store  by  the  month,  his  rent 
beginning  on  the  first  day.  The  landlord 
desires  to  regain  possession,  say  on  the 
first  of  August.  He  must  therefore  give 
the  tenant  full  thirty  days  previous  no- 
tice to  quit  not  later  than  the  31st  of 
July.  In  figuring  the  number  of  days 
the  first  day  (the  day  on  which  the  no- 
tice is  served)  is  excluded  and  the  last 
day  is  included,  unless  it  be  a  Sunday  or 
a  holiday,  in  which  case  the  next  busi- 
ness day  is  included.  Therefore  the  no- 
tice to  quit  could  be  served  not  later 
than  the  first  of  July  in  order  to  give  the 
required  thirty  days  notice  so  as  to  be- 
come effective  on  the  31st.  It  must  be 
understood  that  the  number  of  days  be- 
gins to  run  from  the  time  of  the  actual 
service  of  the  notice,  and  not  from  the 
date  thereof. 

Now,  suppose  the  landlord  neglected 
to  serve  the  notice  until  the  second  of 
July.  The  result  would  be  that  the  ten- 
ant would  be  given  only  twenty-nine 
days  notice,  and  the  order  to  vacate 
would  therefore  not  become  eflPective  on 
the  31st  of  July,  as  intended,  because  it 
lacked  one  day  of  the  full  thirty  days 
required  by  statute ;  the  eflfect  being  that 
the  tenant   could   not  be   ejected   until   a 


THE  LAW  OF  REAL  ESTATE  119 

new  notice  of  thirty  days  had  been 
served  upon  him. 

This  illustration  shows  the  necessity 
of  accurate  computation  of  the  number 
of  days  required  to  be  given  before  the 
notice  takes  effect,  paying  due  regard  to 
the  short  months,  leap  year,  Sundays 
and  holidays.  A  few  extra  days  notice 
won't  hurt,  and  may  often  save  much 
annoyance. 

Form  for  Landlord's  Notice  to  Quit. — 
The  notice  to  quit  need  not  be  in  any 
particular  language,  but  the  following 
form  is  legally  accurate,  where  the  ten- 
ancy is  from  month  to  month,  and  is  re- 
commended for  the  purpose.  If  the  ten- 
ancy is  by  the  week  instead  of  monthly 
change  the  wording  accordingly  so  as  to 
m.ake  it  a  week's  notice. 

LANDLORD'S    NOTICE    TO    QUIT. 

To    (name   of   tenant): 

Yon  are  hereby  required  to  quit  and  deliver 
np  to  me  tlie  po^seHsion  of  the  premises  noTir 
!ie!d  and  occupied  by  you,  situated  in  (here  In- 
sert name  of  state,  county,  city  or  town,  street 
and  number,  or  other  description  sufficient  to 
id«'ntlfy  positively  the  premises  meant),  at  the 
expiration  of  the  month  of  your  monthly  ten- 
ancy of  said  premises  Trhich  commences  on  the 
(first  day  of  July,  19.'>0),  and  ending  on  the 
(thirty-first  day  of  July,  Ift.'O).  This  is  intended 
as  thirty  days  notice  to  quit,  for  the  purpose  of 
terminatiui^   your   tenancy   as    aforesaid. 

(Date )  (Signature ) 

If   the    tenancy    is  from    year    to    year 


120    THE  LAW  OF  REAL  ESTATE 

change  the  wording  of  the  form  to  read 
like  this : 

"You  are  hereby  required  to  quit  and  deliver 
up  to  me  the  possession  of  the  premises  no-»v 
held  and  occupied  by  you,  situated  in  (here  in- 
sert the  description  of  the  property),  at  the 
expiration  of  your  yearly  tenancy  of  said  prem- 
ises >vhich  commences  on  the  (first  day  of  July, 
1950),  and  ending  on  the  (thirty-first  day  of 
July,  1951).  This  is  intended  as  thirty  days 
notice  to  quit  for  the  purpose  of  terminating 
your  tenancy  as  aforesaid." 

Tenant's  Notice  of  Intention  to  Quit. — 
The  tenant's  notice  of  his  intention  to 
vacate  must  be  computed  and  served  in 
just  the  same  manner  as  the  landlord's 
notice  to  quit,  as  illustrated  above.  If 
the  full  week's  or  thirty  days  notice  as 
the  case  may  be  is  not  given  before  the 
expiration  of  his  week,  or  month,  or  year 
he  is  liable  to  be  held  for  an  extra  term's 
rent,  whether  he  vacates  or  not. 

Form  for  Tenant's  Notice  of  Intention 
to  Quit. — The  form  which  follows  is  for 
use  where  the  tenant  hires  from  month 
to  month.  If  the  tenancy  is  by  the  week, 
or  year,  change  the  wording  to  read  ac- 
cordingly. 

TENANT'S    NOTICE    OP   INTENTION   TO    QUIT. 

To    (name   of  landlord): 

Please  take  notice  that  I  shall  quit  posses- 
sion and  deliver  up  the  premises  now  held  and 
occupied  by  me,  situated  at  (here  describe  the 
location  sufllciently  to  identify  the  premises 
meant),  at  the  end  of  the  monthly  period  of 
my  tenancy   which  terminates   on   the    (thirti^tli 


THE  LAW  OF  REAL  ESTATE  121 

day  of  September,  1050),  as  I  intend  to  remove 
therefrom.  This  notice  Is  given  as  required  by 
law  for  the  purpose  of  terminating  the  said 
tenancy. 

(Date )  (Signature ) 

Where  Hiring  is  From  Year  to  Year. 

— Where  the  hiring  is  from  year  to  year, 
but  for  no  specified  number  of  years,  or 
where  the  law  presumes  the  hiring  to  be 
from  year  to  year,  30  days  notice  to  quit, 
or  of  intention  to  quit,  is  all  that  is  re- 
quired, but  such  notice  must  be  served  at 
least  full  thirty  days  before  the  expira- 
tion of  the  year. 

Landlord  Entitled  to  Re-enter  After 
Thirty  Days. — At  the  expiration  of  the 
thirty  days  notice,  legally  given  as 
above,  the  landlord  is  entitled  to  re-enter 
the  premises  and  take  possession  again. 
If  he  meets  with  opposition  and  resist- 
ance he  can  proceed  according  to  law  to 
recover  the  property  and  enforce  his 
claim  for  any  damages  he  may  incur  by 
reason  of  such  opposition  and  resist- 
ance. 

The  Thirty  Days  Notice  is  Imperative 
Under  All  Circumstances. — Where  the 
tenancy  is  of  the  temporary  character  as 
above  described,  the  thirty  days  notice  to 
quit  cannot  be  dispensed  with  under  any 
circumstances,  no  matter  what  the  land- 


122    THE  LAW  OF  REAL  ESTATE 

lord's  reason  may  be  for  putting  the  ten- 
ant out,  whether  for  default  in  the  rent, 
or  violation  of  any  other  of  the  provi- 
sions of  the  agreement,  or  for  any  cause 
whatsoever. 

Waiving  of  Notice. — Either  notice  to 
quit  or  notice  of  intent  to  quit  may  be 
waived  by  the  parties  to  the  hiring;  or 
the  length  of  the  notice  required  by  law 
may  be  shortened  or  extended  by  their 
mutual  agreement. 

Holding  Over  by  Tenant  From  Month 
to  Month  or  Year  to  Year. — After  the 
expiration  of  the  thirty  days  notice  as 
prescribed  by  law,  the  tenant,  if  he  holds 
over  and  refuses  to  give  up  the  premises 
peacefully,  is  guilty  of  unlawful  detainer. 
The  landlord  may  then  and  without  fur- 
ther notice  bring  an  action  of  ejectment 
against  him,  or  he  may  instead  bring  an 
action  for  unlawful  detainer  and  recov- 
ery of  possession,  which  is  the  usual 
method.  But  before  he  can  bring  the  lat- 
ter action  he  must  serve  the  tenant  with 
a  FURTHER  NOTICE  TO  GIVE  UP 
POSSESSION  OF  THE  PREMISES 
AT  THE  EXPIRATION  OF  THREE 
iDAYS,  in  writing.  If  the  tenant  then 
still  refuses  to  vacate  the  landlord  may 
proceed   at  once   with   his   action   for  re- 


THE  LAW  OF  REAL  ESTATE  123 

covery  both  of  the  premises  and  all  pen- 
alties and  damages  allowed  him  by  law. 
Same  as  to  Tenant  and  Subtenant. — 
All  the  above  provisions  apply  w^ith 
equal  force  to  tenant  and  subtenant.  The 
tenant  may  evict  the  subtenant  in  the 
same  manner,  and  the  subtenant  may  be 
required  to  give  like  notice  to  the  orig- 
inal tenant  from  whom  he  hires. 

PENALTIES  AND  DAMAGES 

Penalty     for     Holding    Over. — If   any 

tenant,  or  any  person  in  C(jllusion  with 
the  tenant,  continues  in  possession  of 
any  lands  or  tenements  after  proper  no- 
tice has  been  served  upon  him  to  quit, 
or  demand  made  to  perform  any  coven- 
ants of  the  lease  which  he  may  have  vio- 
lated, or  else  give  up  possession,  he  must 
pay  to  the  landlord  treble  rent  during 
the  time  he  thus  unlawfully  holds  over. 

Penalty  for  Failure  to  Quit. — If  any 
tenant  gives  notice  of  his  intention  to 
quit  the  premises,  and  does  not  quit  and 
deliver  up  possession  at  tlie  time  speci- 
fied in  the  notice,  he  must  pay  to  the 
landlord  treble  rent  durini:;  the  time  he 
continues   in   possession   thereafter. 

Liability  of  Lessor  for  Breach  of 
Lease. — Violation   of    the    terms   of    the 


124    THE  LAW  OF  REAL  ESTATE 

lease  by  the  lessor  entitles  the  lessee  to 
bring  an  action  against  him  to  recover 
whatever  damages  he  may  sustain  by 
reason   of   such  breach. 

Liability  of  Tenant  for  Breach  of 
Lease. — Violation  of  the  terms  of  the 
lease  by  the  lessee  entitles  the  lessor  to 
bring  an  action  against  him  for  what- 
ever damages  he  may  sustain  by  reason 
of  such  breach. 

DEMAND    FOR    POSSESSION 

No  Notice  Necessary  Where  Tenancy 
is  For  Specified  Term. — Expiration  of 
the  time  stated  in  a  lease  for  a  specified 
term  terminates  the  lease  automatically 
without  notice.  The  lessee  is  supposed 
to  know  when  his  term  is  up,  and  there- 
fore NO  NOTICE  TO  QUIT  IS 
NECESSARY.  Neither  is  any  notice  of 
the  tenant's  intention  to  quit  necessary. 
The  tenancy  is  ended  without  further  ado, 
and  that  is  all  there  is  to  it.  It  is  the 
tenant's  duty  to  give  up  possession  at 
once,  on  the  last  day,  unless  he  has  made 
arrangements  for  renewal.  If  he  holds 
over  for  even  one  day  he  takes  a  chance 
of  being  held  for  the  rent  for  another 
term,  or  of  being  ejected  and  held  liable 
for  damages. 


THE  LAW  OF  REAL  ESTATE  125 

It  is  well,  however,  where  the  land- 
lord does  not  intend  to  renew  the  lease 
after  its  expiration,  to  give  the  tenant 
notice  to  that  effect.  Such  notice  not 
only  serves  to  make  known  the  lessor's 
intentions,  but  also  makes  the  tenant 
liable  for  treble  rents  from  the  moment 
the  term  ends,  if  he  holds  over,  without 
giving  him  further  notice. 

A  further  notice  of  three  days,  com- 
manding the  tenant  to  vacate,  is  neces- 
sary, though,  before  the  lessor  can  bring 
an  action  for  unlawful  detainer. 

Form  for  Notice  Demanding  Posses- 
sion at  End  of  Term. — The  form  which 
follows  is  useful  for  notifying  the  lessee 
that  the  landlord  requires  possession  of 
the  leased  premises  at  the  end  of  the 
term,  where  there  is  no  contract  of  re- 
newal. It  may  be  served  upon  the  lessee 
at  any  time,  unless  a  certain  number  of 
days  notice  is  specified  in  the  lease: 

DE^IAND  FOR  SURRENDER  OF  POSSESSION 
AT    END    OF    TERM. 

To    (name   of   tenant) : 

You  are  hereby  notified  that  on  the  (thirty- 
first  day  of  July,  1951),  your  lease  or  tenancy 
of  the  premises  you  no^v  hold  possession  of, 
situate  (here  describe  property  and  location 
definitely)  will  terminate  and  end,  and  you  are 
requested  and  required  to  deliver  possession 
thereof  to  the  undersigned  (or  to  some  other 
person  named)  on  said  thirty-first  day  of  July, 
lOol. 

(Date )  (Sigrnature ) 


126    THE  LAW  OF  REAL  ESTATE 

SURRENDER  OF  LEASE 
By  Mutual  Consent. — The  hiring  of 
property  may  be  terminated  at  any  time 
upon  such  terms  and  conditions  as  ma}^ 
be  agreed  upon  by  the  mutual  consent  of 
the  parties,  made  in  good  faith,  follovved 
by  the  surrender  and  vacation  of  the 
premises.  The  latter  is  absolutely  nec- 
essary in  order  to  avoid  charges  of  fraud. 
\\'hen  the  surrender  is  made  the  fact 
should  always  be  endorsed  on  the  lease, 
or  a  separate  contract  drawn  embracing 
the  facts. 

FORFEITURE  OF  LEASE 
For  Default  in  Rent. — Where  the  ten- 
ant under  a  lease  for  a  specified  term  is 
behind  in  his  rent  (default  is  the  legal 
term),  the  landlord  may  serve  him  with 
THREE  DAYS  XOTICE  TO  PAY  OR 
QUIT  THE  PREMISES.  If  the  tenant 
does  not  then  pay,  or  give  up  possession, 
the  lease  is  thereby  terminated,  and  the 
tenant  is  guilty  of  unlaw^ful  detainer. 
The  landlord  is  then  at  liberty  to  com- 
mence an  action  for  recovery  of  the 
premises  whenever  he  shall  see  fit,  and 
also  for  adequate  damages.  The  no<"ice 
may  be  served  at  any  time  within  one 
year  after  the  rent  becomes  due. 


THE  LAW  OF  REAL  ESTATE  127 

Form    for   Notice    to  Pay    Rent. — The 

following-  form  is  a  proper  notice  to  the 
lessee  when  he  is  in  default  with  the 
rent.  Care  should  always  be  taken  to 
state  in  the  notice  the  amount  of  rent 
due,  and  also  to  demand  possession  if  it 
is  not  paid.  The  law  does  not  say  the 
notice  must  state  that  the  rent  must  be 
paid  WITHIN  three  days,  but  that 
THREE  DAYS  NOTICE  must  be  given 
the  lessee  to  pay  up  or  quit ;  which  is 
quite  a  difference  which  probably  but 
few  understand. 

NOTICE     TO     PAY     RENT     OR     SURRENDER 
POSSESSION 

To    (name   of  tenant): 

You  are  hereby  required  to  pay  the  rent  of 
the  premises  situate  (here  deseribe  the  location 
and  property  definitely),  and  Tvhieh  you  now 
hold  possession  of,  amounting  to  (eiejhty-five) 
dollars,  being  the  amount  due  and  ovfing  to  me 
by  you  for  (one)  month's  rent,  from  the  (first 
day  of  July,  1050,  to  the  thirty-first  day  of  July, 
1950),  or  deliver  up  the  possession  of  the  said 
premises  to  me  (or  to  some  agent  named,  vrho 
is  hereby  authorized  to  receive  possession  there- 
of, or  of  the  rent  due  and  unpaid  by  you).  If 
you  fail  to  comply  Trith  this  notice  I  shall  in- 
stitiJte  leaal  proceedings  against  you  to  recover 
possession  of  said  premises,  ^vith  treble  rents. 

(Date )  (Signature ) 

For  Violation  of  Covenants. — V/here 
the  tenant  violates  or  fails  to  perform 
any  of  the  covenants  or  provisions  of  the 
lease  the  landlord  mav  serve  h^m  with 
THREE  DAYS  NOTICE  to  perform  or 


128    THE  LAW  OF  REAL  ESTATE 

comply  with  them  or  quit.  If  the  ten- 
ant does  not  do  so  within  a  reasonable 
time,  his  failure  to  do  so  terminates  the 
lease,  and  he  is  from  that  time  on  a  tres- 
passer guilty  of  unlawful  detainer.  The 
landlord  may  bring  an  action  for  the 
same  without  further  notice,  and  may  in- 
clude his  claim  for  whatever  damages  he 
may  sustain. 

Form  for  Landlord's  Notice  to  Perform 
Covenant:. — The  following  furm  can  be 
varied  to  suit  the  case  whenever  it  is 
necessary  to  give  notice  to  the  tenant 
to  comply  with  the  terms  of  any  of  the 
covenants  of  the  lease  which  he  may 
have  violated.  Probably  the  best  way  is 
to  copy  into  the  notice  the  exact  words 
of  the  covenant  which  the  lessor  claims 
is  violated  as  they  are  written  in  the 
lease. 

NOTICE  TO  PERFORM  COVENANTS,  OR  GIVE 
UP  POSSESSION 

To    (name  of  tenant): 

You  are  hereby  notified  that  in  the  lease 
under  which  you  hold  possession  of  the  premises 
situate  (describe  the  location  definitely),  you 
covenanted  and  agreed  to  (copy  In  here  the 
exact  words  of  the  clause  of  the  lease  which 
the  tenant  has  failed  to  perform),  and  which 
ai^reement  you  have  failed  to  keep.  Xow  this 
is  to  notify  you  that  you  are  required  to  (state 
what  the  tenant  is  required  to  do),  as  yon 
agreed  to  do  as  aforesaid,  or  deliver  up  posse*- 


THE  LAW  OF  REAL  ESTATE  129 

sion  of  the  said  premises  to  the  undersigned,  or 
I  shall  beg^in  le.cral  procecdinjUTS  against  you  to 
recover    posse^isiou   of    the   same. 

(  Date )  (Signature ) 

Notices  Must  Be  Served  Upon  Sub- 
tenants Also. — The  notices  provided  for 
above  must  be  served  not  only  upon  the 
LESSEE  but  also  upon  any  SUBTEN- 
ANTS in  actual  possession  of  the  prem- 
ises, 

Betw^een  Tenant  and  Subtenant. — The 

orig-inal  tenant  may  take  the  same  pro- 
ceedings  against  a  subtenant. 

Any  Person  Interested  May  Save 
Lease  From  Forfeiture. — Within 
THREE  DAYS  after  service  of  any  of 
the  notices  mentioned  above  ANY  PER- 
SON who  is  interested  in  the  continu- 
ance of  the  lease  may  pay  the  rent,  or 
comply  with  the  other  demands  made, 
and  thus  save  the  lease  from  forfeiture. 

Forfeiture  of  Lease  for  Assigning, 
Subletting,  or  Committing  Waste. — Any 
tenant  or  subtenant  assigning",  or  sublet- 
ting, or  committing  waste  upon  the 
premises,  contrary  to  the  provisions  of 
his  lease,  thereby  terminates  the  lease, 
and  the  landlord  shall,  upon  service  of 
THREE  DAYS  NOTICE  TO  QUIT 
upon  the  person  or  persons  in  possession 


130    THE  LAW  OF  REAL  ESTATE 

be  entitled  to  restitution  to  him  of  such 
premises. 

UNLAWFUL  DETAINER 

Definition. — Unlawful  detainer  is  the 
detaining  or  holding  possession  unlaw- 
fully of  property  belonging  to  another. 

When  Tenant  is  Guilty  of. — The  ten- 
ant of  real  property  is  guilty  of  unlawful 
detainer  when  he  continues  in  possession 
thereof,  either  in  person  or  by  subtenant, 
after  the  expiration  of  his  term  without 
the  permission  of  the  landlord. 

2.  When  he  remains  in  possession 
after  default  in  the  rent  and  proper  de- 
mand to  pay  the  same. 

3.  When  he  remains  in  possession 
after  violation  of  any  of  the  covenants 
of  the  lease  and  proper  demand  to  rem- 
edy the  same. 

Actions    for    Unlawful    Detainer. — No 

action  for  unlawful  detainer  can  be  com- 
menced until  the  e^uiltv  person  has  been 
served  with  THREE  DAYS  NOTICE  of 
the  intention  to  bring  the  action.  This 
is  explained  further  and  forms  for  no- 
tices given  under  the  heading  of  "For- 
feiture of  Lease." 


THE  LAW  OF  REAL  ESTATE  131 

MANNER    OF    SERVING    NOTICES 

Conformity  With  the  Law  Very  Nec- 
essary.— Where  it  is  necessary  to  serve 
any  notice  upon  any  tenant  or  lessee 
great  care  should  be  used  in  making  the 
service  so  as  to  conform  strictly  to  the 
law,  for  if  the  service  is  faulty  in  any 
respect  it  may  nullify  the  effect  of  the 
notice. 

What  the  Lav^  Requires. — The  notice 
to  quit,  or  any  other  of  the  notices  re- 
quired by  the  provisions  of  this  article, 
may  be  served  either  by  delivering  a 
copy  to  the  tenant  personally;  or,  if  he 
is  absent  from  his  usual  place  of  resi- 
dence or  business,  by  leaving  a  copy  of 
the  notice  at  either  place  with  some  per- 
son of  suitable  age  and  discretion,  and 
sending  a  copy  through  the  mail,  ad- 
dressed to  the  tenant  at  his  place  of  resi- 
dence; or,  if  such  place  of  residence  and 
business  cannot  be  ascertained,  or  a  per- 
son of  suitable  age  and  discretion  cannot 
be  found,  then  by  affixing  a  copy  in  a 
conspicuous  place  on  the  property,  and 
also  delivering  a  copy  to  a  person  there 
residing,  if  such  person  can  be  found ; 
and    also    sending    a    copy    through    the 


132    THE  LAW  OF  REAL  ESTATE 

mail  addressed  to  the  tenant  at  the  place 
where  the  property  is  situated. 

Service  Upon  Subtenant. — Service  up- 
on a  subtenant,  either  by  the  lessor  or 
by  the  original  lessee,  may  be  made  in 
the  same  manner. 

Caution. — Always  being  careful  to  al- 
low the  full  number  of  days  to  intervene 
between  the  time  of  the  actual  service 
and  when  the  notice  is  to  take  effect. 

USE  OF  FORCE 

Not  Permissible. — The  use  of  force  in 
the  ejectment  or  eviction  of  tenants  after 
the  right  has  accrued  to  the  landlord  to 
re-enter  and  take  possession  of  the  prem- 
ises is  not  permissible  in  this  state.  It 
can  only  be  done  by  due  process  of  law, 
and   by  the  proper   officer   of   the  court. 

JURISDICTION  OF  COURTS 

Of  Justice  Court. — Actions  for  unlaw- 
ful detainer  may  be  brought  in  the  Jus- 
tice Court  of  the  township  where  the 
property  is  situated  where  the  whole 
amount  of  the  damages  claimed  against 
the  tenant  does  not  exceed  the  sum  of 
two  hundred  dollars,  or  the  rental  value 
of  the  premises  does  not  exceed  twenty- 
five  dollars  per  month. 


THE  LAW  OF  REAL  ESTATE  133 

Of  Superior  Court. — Actions  for  un- 
lawful detainer  as  specified  in  the  above 
paragraph  may  be  brought  in  the  Justice 
Court,  or  they  may  be  brought  in  the 
Superior  Court  of  the  county  in  which 
the  property  is  situated,  at  the  option  of 
the  plaintiff.  All  actions  involving 
amounts  greater  than  those  specified  can 
be  brought  in  the  Superior  Court  only. 

DUTY    OF  TENANT  TO    NOTIFY 
LANDLORD 
When  Liable  for  Damages  for  Failure 

To. — Every  tenant  who  receives  notice 
of  any  proceeding  to  recover  the  real 
property  occupied  by  him,  or  its  posses- 
sion, must  inform  his  landlord  imme- 
diately, and  must  deliver  to  his  landlord 
the  notice  he  received,  if  in  writing.  And 
if  the  tenant  fails  to  inform  his  landlord 
of  any  such  notice,  or  to  deliver  the  no- 
tice to  him  if  in  writing,  he  will  be  liable 
to  the  landlord  for  all  damages  which  he 
may  sustain  by  reason  of  such  failure. 

CHANGE  OF  OWNERSHIP 

Lessee  Not  Affected  By  Transfer  of 
Title. — The  transfer  of  the  title  to  the 
leased  premises  does  not  in  any  way  af- 
fect, change,  or   modify   the   lease.     The 


134    THE  LAW  OF  REAL  ESTATE 

grantee  simply  takes  the  place  of  his 
grantor,  and  becomes  the  landlord  of  the 
tenant. 

The  new  landlord  therefore  has  all  the 
rights  of  the  original  lessor  against  the 
tenant,  and  the  tenant  has  the  same 
rights  against  the  new  landlord  as  he  had 
against  the  original  lessor. 

PAYMENT  OF  TAXES 

Is  Subject  to  Agreement. — In  the  ab- 
sence of  any  agreement  to  the  contrary 
the  law  imposes  the  burden  of  paying 
the  taxes  and  assessments  upon  the  own- 
er, but  this,  like  most  other  matters,  may 
be  the  subject  of  contract  between  the 
owner  and  the  tenant,  the  latter  assum- 
ing the  liability  if  he  chooses  so  to  do. 

REMOVAL     OF    FIXTURES 

Right  of  Tenant  to  Remove. — A  ten- 
ant may  remove  from  the  leased  prem- 
ises, at  any  time  DURING  THE  CON- 
TINUANCE of  his  term,  anything  af- 
fixed thereto  for  purposes  of  trade,  man- 
ufacture, ornament,  or  domestic  use,  if 
the  removal  can  be  effected  without  in- 
jury to  the  premises,  unless  the  thing 
has.  by  the  manner  in  which  it  is  affixed, 
become  an  integral  part  of  the  premises. 


THE  LAW  OF  REAL  ESTATE  135 

What  Are  Fixtures. — AYhat  things 
constitute  fixtures,  and  when  they  are 
removable  and  when  irremovable,  are  ex- 
plained in  detail  in  the  chapter  on  real 
property,  herein,  to  which  the  reader  is 
referred. 

Must  Be  Removed  Before  End  of 
Term. — The  tenant  must  remove  his  fix- 
tures from  the  leased  premises  BEFORE 
THE  END  OF  THE  LAST  DAY  of  his 
term,  or  he  forfeits  his  right  to  do  so. 
If  he  leaves  them  as  much  as  one  day 
without  permission  they  become  the 
j>roperty  of  the  landlord.  If,  however, 
the  lease  says  they  may  be  removed  at 
the  end  of  the  term,  it  will  be  implied 
that  the  tenant  has  a  reasonable  time 
thereafter  in  which  to  remove  them;  but 
he  must  use  diligence,  and  not  sleep  on 
his  rights,  if  he  would  avoid  possible  dif- 
ficulties. 

Tenant  Cannot  Remove  Fixtures 
Where  Lease  is  Forfeited. — It  seems  to 
be  a  well-settled  rule,  as  evidenced  by 
decisions  of  the  courts,  that  where  the 
lease  is  forfeited  for  nonpayment  of  rent 
or  for  violation  of  its  covenants,  the  ten- 
ant cannot  then  remove  his  fixtures. 
They  pass  into  the  possession  of  the  les- 
sor. 


136    THE  LAW  OF  REAL  ESTATE 

REPAIRS 

Lessor  Must  Put  Dwelling  in  Inhabit- 
able Condition. — The  lessor  of  a  building 
intended  for  the  OCCUPATION  OF 
HUMAN  BEINGS  must,  in  the  absence 
of  any  agreement  to  the  contrary,  put  it 
into  condition  fit  for  such  occupation, 
and  repair  all  subsequent  dilapidations 
thereof  which  render  it  untenantable,  ex- 
cept all  such  deteriorations  and  damages 
as  are  caused  by  the  negligence  and  want 
of  care  of  the  tenant ;  in  the  latter  cir- 
cumstances, the  lessee  must  make  the  re- 
pairs himself. 

Lessee  May  Make  Repairs  if  Owner 
Fails  to  Do  So,  or  May  Vacate  Premises. 

— If.  within  a  reasonable  time  after  the 
lessor  has  been  notified  of  the  necessity 
for  repairs  which  it  is  his  duty  to  make, 
he  neglects  to  make  them,  the  lessee 
may  make  them  himself,  up  to  the 
amount  of  ONE  ^lONTH'S  RENT,  and 
deduct  the  same  from  the  rent;  or,  he 
may  vacate  the  premises  and  surrender 
the  lease,  in  which  case  he  is  discharged 
from  further  payment  of  rent,  or  per- 
formance of  other  conditions  of  the  con- 
tract. 

In  several  cases   the    courts    have    de- 


THE  LAW  OF  REAL  ESTATE  137 

cided  that  under  no  circumstances  can 
the  tenant  make  any  repairs  himself  until 
after  he  has  notified  the  landlord  to  do 
so,  if  he  wishes  to  hold  the  latter  to  pay 
for  them ;  neither  can  he  vacate  the 
premises  because  of  their  condition  until 
he  has  notified  the  landlord  to  improve 
them  and  he  fails  to  do  so. 

Tenant  May  Contract  to  Make  the  Re- 
pairs.— The  above  paragraphs  shall  in 
no  wise  be  construed  to  mean  that  the 
lease  of  a  dwelling  house  may  not  pro- 
vide that  the  tenant  shall  make  all  neces- 
sary repairs  himself;  such  a  clause  in  the 
contract  is  lawful,  the  preceding  rules, 
as  stated  in  the  beginning,  defining  the 
duties  of  the  lessor  and  the  rights  of  the 
tenant  only  in  cases  where  there  is  no 
agreement  to  the  contrary.  A  great 
many  dwelling  house  leases  do  provide 
that  all  repairs  and  upkeep  shall  be  made 
by  the  tenant,  and  that  he  shall  return 
the  premises  in  as  good  condition  as  he 
found  them,  ordinary  wear  and  tear  and 
damages  by  the  elements  excepted. 

Where  the  tenant  undertakes  to  make 
the  repairs  it  is  verv  important  that  the 
clause  excepting  "damages  by  the  ele- 
ments" be  added  to  the  contract ;  other- 
wise he  might  be  held  to  make  repairs 


138    THE  LAW  OF  REAL  ESTATE 

necessitated  by  accidental  casualties  not 
contemplated  when  making  the  contract. 

Lessor  Not  Liable  for  Damages  From 
Dilapidations. — IMany  suits  have  been 
brought  against  landlords  for  damages 
sustained  by  tenants  because  of  the  dilap- 
idated condition  of  leased  residence 
premises  consequent  upon  the  landlord's 
failure  to  make  repairs  after  notice  had 
been  given  him  to  do  so.  In  all  such 
suits  the  courts  have  invariably  held  that 
no  damages  could  be  recovered,  for  the 
reason  that  the  law  gives  the  tenant  the 
privilege  of  making  the  repairs  himself 
if  the  landlord  fails  to,  or  in  such  case 
the  option  to  vacate  the  premises ;  and  if 
he  neglects  to  take  advantage  of  these 
rem.edies  it  is  his  own  negligence,  and 
he  has  no  one  to  blame  but  himself. 

But  if  the  landlord  does  assume  to 
make  repairs,  and  if  in  the  performance 
thereof,  or  as  a  result  thereof,  any  injury 
is  caused  to  the  lessee  because  of  want 
of  skill  or  proper  selection  of  his  work- 
men or  materials  he  can  be  held  liable 
therefor. 

Lessor's  Obligation  to  Repair  Not  Ap- 
plicable to  Business  Property. — It  will 
be  noticed  that  the  obli2:?tions  as  to  re- 
pairs as  stated  above  have  reference  sol- 


THE  LAW  OF  REAL  ESTATE  139 

ely  to  premises  occupied  or  to  be  occu- 
pied by  humans  as  a  dwelling  place.  The 
courts  have  held  that  they  are  special 
provisions  attached  by  statute  to  resi- 
dence property  for  the  purpose  of  safe- 
guarding the  health  and  well-being  of 
the  occupants,  and  that  said  provisions 
do  not  in  any  way  apply  to  property 
used  for  business  purposes. 

Where  property  is  to  be  used  for  busi- 
ness purposes  the  prospective  lessee  is 
supposed  to  examine  them  and  decide 
for  himself  if  they  are  fit  for  his  purpose, 
as  he  is  presumed  to  know  best  his  own 
intentions  and  needs;  and  as  the  prem- 
ises might  originally  have  been  erected 
for  an  entirely  different  use,  there  can 
be  no  implied  presumption  that  they  are 
suitable  for  the  use  to  which  he  intends 
to  put  them,  or  that  they  will  be  kept  in 
repair  so  as  to  continue  to  be  suitable 
for  such  use.  Therefore  the  tenant  is 
presumed  to  take  the  premises  as  they 
are,  and  the  landlord,  in  the  absence  of 
any  express  agreement  on  his  part,  is  not 
lequired  to  make  any  alterations  or  re- 
pairs, even  when  the  premises  become 
defective  from  decay. 

In  the  case  of  a  dwelling  house  it  is 
different.     As  it  was  presumably  erected 


140    THE  LAW  OF  REAL  ESTATE 

for  human  occupation,  and  is  let  for  that 
purpose,  it  is  presumed  that  it  is  fit  for 
that  purpose,  and  the  obligation  is  there- 
fore imposed  by  the  law  of  the  state  up- 
on the  landlord  to  place  it  in  and  main- 
tain it  in  an  inhabitable  condition,  un- 
less the  tenant  assumes  the  obligation  to 
do  so  himself. 

It  is  thus  quite  evident  that,  since  the 
landlord  is  not  required  by  statute  to 
make  repairs  upon  premises  used  for 
business  purposes,  the  tenant  must 
either  do  so  for  himself,  or  provide  for 
such  matters  in  the  lease.  Therefore  all 
conditions  and  agreements  regarding  al- 
terations, repairs  and  maintenance,  light, 
heat,  sign  space,  water  rates,  painting, 
and  all  other  items,  as  well  as  purposes 
for  which  the  premises  are  to  be  used, 
should  be  carefully  and  specifically  in- 
corporated in  the  lease,  as  the  law  it- 
self will  aflFord  no  comfort  or  relief,  but 
will  leave  it  to  the  agreements  in  the 
contract. 

NUISANCE 

Definition  of  Nuisance. — Anything 
w^hich  is  injurious  to  health,  or  is  inde- 
cent or  offensive  to  the  senses,  or  an  ob- 
struction to  the  free  use  of  the  property 


THE  LAW  OF  REAL  ESTATE  141 

SO   as  to  interfere  with   the   comfortable 
enjoyment  thereof,  is  a  nuisance. 

Action  Against  Tenant  for  Maintain- 
ing.— An  action  may  be  brought  against 
the  tenant  by  any  person  whose  prop- 
erty is  injuriously  affected  by  a  nuisance, 
and  if  judgment  is  obtained  the  nuisance 
may  be  enjoined  or  abated,  and  damages 
therefor   may   be   recovered  as  well. 

WASTE 

Duty  of  Tenant  to  Use  Property  in 
Careful  Manner. — While  the  tenant  is 
not  liable  for  damages  to  the  leased 
premises  for  use  in  a  lawful  and  proper 
manner,  yet  it  is  his  duty  to  so  use  them 
as  not  to  cause  unnecessary  injury. 

The  tenant  is  generally  liable  for  caus- 
ing permanent  injury  over  and  above  or- 
dinary wear  and  tear,  when  such  injury 
is  caused  by  his  wrongful  act  or  negli- 
gence. The  measure  of  care  which  the 
tenant  must  use  to  avoid  responsibility 
is  that  which  a  person  of  ordinary  prud- 
ence and  caution  would  use  if  the  prop- 
erty were  his  own. 

Damages  for  Committing  Waste. — 
Where  the  tenant  commits  wilful  waste 
any  person  who  is  aggrieved  thereby 
may  bring  an  action  against  him  there- 


142    THE  LAW  OF  REAL  ESTATE 

for,  and  the  judgment  may  be  for  treble 
the  amount  of  the  injury. 

Lease  May  Be  Terminated  for  Waste. 
— Any  tenant  or  subtenant  committing 
Avaste  (injury)  upon  the  leased  premises, 
contrary  to  the  provisions  of  his  lease, 
thereby  terminates  the  lease,  and  the 
landlord  shall,  upon  service  of  proper 
notice  to  quit  upon  the  person  or  persons 
in  possession,  be  entitled  to  restitution 
to  him  of  such  premises.  See  "Forfeit- 
ure of  Lease.'' 

FORMS  FOR  LEASES 

All  Leases  Should  Be  Reduced  to 
Writing,  and  Should  Be  Explicit  in  Their 
Terms. — A  lease  is  but  a  contract,  and 
therefore  should  be  drawn  and  executed 
in  about  the  same  manner  as  any  valid 
contract  would  be.  There  must  be  par- 
ties who  are  competent  to  contract,  and 
the  wording  should  be  direct  and  ex- 
plicit enough  so  as  to  be  able  to  ascer- 
tain from  it  the  intentions  of  the  parties 
towards  each  other,  and  just  what  each 
obligated  himself  to  do.  The  law  simply 
establishes  the  liabilities  of  the  parties 
in  the  absence  of  definite  agreements, 
and  practically  all  its  provisions  may  be 
modified  or  changed  by  contract. 


THE  LAW  OF  REAL  ESTATE  143 

Therefore  every  matter  of  importance, 
in  cases  where  it  is  not  desired  to  be 
bound  by  the  provisions  of  the  law 
which  would  govern  in  the  absence  of 
any  special  agreement,  should  be  incor- 
porated in  the  written  instrument.  Oral 
leases  and  agreements  may  be  all  right, 
but  when  proof  is  wanted  they  are  some- 
times pretty  poor  things;  so,  even  in 
short  term  contracts,  prudence  and  good 
business  economy  would  seem  to  sug- 
gest that  all  leases  should  be  reduced  to 
writing  in  order  to  avoid  argument  and 
dispute,  and  to  more  firmly  establish 
both  the  rights  and  liabilities  of  the  par- 
ties interested. 

Form  for  Ordinary,  Every-Day  Lease. 
— No  particular  language  is  required  to 
be  used  in  drawing  up  a  lease,  but  cer- 
tain forms  and  expressions  have  come  to 
be  used  for  the  purpose,  and  it  is  well 
to  follow  them  pretty  closely  for  the  sake 
of  legal  accuracy.  The  following  form 
is  simple,  is  in  every  way  adequate,  bind- 
ing and  holding.  After  the  opening  para- 
graphs are  copied,  with  the  wording  in 
parentheses  changed  to  suit  the  case  in 
hand,  there  may  be  added,  in  the  place 
indicated,  as  few  or  as  many  other 
agreements  as  the  parties  see  fit.     After 


144    THE  LAW  OP  REAL  ESTATE 

as  many  have  been  inserted  as  desired, 
then  close  the  form  as  per  the  closing 
paragraphs ;  being  always  careful  to  state 
when  the  term  begins,  and  dating  it  on 
the  day  it  is  signed  and  delivered,  you 
have  as  perfect  an  instrument  as  it  is 
possible  to  make.  Each  party  should 
take  a  copy. 

LEASE. 

THIS  LEASE,  made  the  (first  day  of  July, 
in  the  year  of  our  Lord  nineteen  hundred  and 
twenty),  bet-tveen  (Jonathan  Wilson),  the  party 
of  the  first  part,  and  (Harrison  Fish),  the  party 
of  the  second  part,  AVitnesseth:  That  for  and 
in  consideration  of  the  payments  of  the  rents, 
and  the  performance  of  the  covenants  contained 
herein,  on  the  part  of  the  said  party  of  the  sec- 
ond part,  and  in  the  manner  hereinafter  stated, 
said  party  of  the  first  part  does  hereby  lease, 
demise,  and  let  unto  the  said  party  of  the  seconil 
part,  that  certain  (dwelling  house,  store  room, 
warehouse,  or  whatever)  and  its  appurtenances, 
situated  at  (liere  describe  the  property  intended 
to  be  let  definitely,  stating  the  city  or  town, 
county  and  state  also),  for  the  term  of  (two 
years),  commencing  on  the  (first  day  of  July, 
1920),  and  ending  on  the  (thirtieth  day  of  June, 
1922),  at  the  monthly  rent  of  (forty)  dollars, 
payable  monthly  in  advance,  on  the  first  day 
of   each   and   every   montli   during   said   term. 

And  the  said  party  of  the  second  part  does 
hereby  covenant,  promise  and  agree  to  pay  to 
the  said  party  of  the  first  part  the  said  rent 
herein   reserved   in    the   manner   herein   specified. 

And  It  is  further  covenanted  and  agreed,  that 
if  any  rent  shall  be  due  and  unpaid,  or  if  default 
shall  be  made  in  any  of  the  covenants  herein 
contained,  then  it  shall  be  lawful  for  the  said 
party  of  the  first  part  to  re-enter  the  said  prem- 
ises   and    to    remove    all    persons    therefrom. 

(Add  here  any  other  covenants  or  agreements 
desired,  as  per  the  suggestions  given  further 
on,  closing  the  lease  with  the  paragraphs  which 
follow). 


THE  LAW  OF  REAL  ESTATE  145 

And  it  Is  further  covenanted  and  agreed,  that 
at  the  expiration  of  the  said  term,  or  any  sooner 
determination  of  this  lease,  the  said  party  of 
the  second  part  will  quit  and  surrender  the 
premises  hereby  leased  and  demised  in  as  good 
order  and  condition  as  reasonal>le  use  and  Trear 
thereof  will  permit,  damages  by  the  elements 
excepted. 

And  it  is  furtlier  covenanted  and  agreed,  that 
if  the  party  of  the  second  part  shall  hold  over 
the  said  term,  with  the  consent,  expressed  or 
implied,  of  the  party  of  the  first  part,  such 
holding  shall  be  construed  to  be  a  tenancy 
only  from  month  to  month,  and  said  party  of 
the  second  part  will  pay  the  rent  as  herein 
covenanted  for  such  term  as  he  may  hold  the 
same. 

And  it  is  further  covenanted  and  ap.reed  that 
all  the  provisions  of  this  lease  shall  extend  to 
and  include  the  heirs  and  ai^signs  of  the  lessor, 
the  party  of  the  first  part,  and  the  executors,  ad- 
ministrators, and  assigns  of  the  lessee,  the  party 
of  the  second  part. 

In  witness  whereof,  the  said  parties  have 
hereunto  set  their  hands  the  day  and  year  first 
above    written. 

(Signature   of  lessor ) 

(Signature  of  lessee ) 

Signed   and   delivered   in    the   presence    ofj 

(Signatures  of  witnesses.) 

Forms  for  Extra  Covenants. — The  fol- 
lowing covenants  are  suggestions  for 
wording  other  items  of  the  contract. 
They  cover  nearly  all  the  items  usually 
inserted  in  the  average  lease.  A  coven- 
ant is  simply  an  agreement  to  do  or  not 
to   do  a  certain  thing. 

The  examples  given  can  be  changed 
or  varied  so  as  to  indicate  the  intentions 
of  the  parties,  and  others  added  when 
desired   to  cover   matters   like  insurance. 


146    THE  LAW  OF  REAL  ESTATE 

payment  of  water  rates,  light,  and  heat, 
removal  of  fixtures  and  improvements, 
amount  of  repairs  and  when  and  how  to 
be  made,  repairing  and  rebuilding  in 
case  of  fire,  how  lease  may  be  surren- 
dered, allowance  of  days  of  grace  in  the 
payment  of  the  rent,  and  any  and  all 
items  which  the  circumstances  and  con- 
ditions surrounding  the  making  of  the 
lease  may  suggest. 

COVENANT  OF  USE 
And  it  Is  further  covenanted  and  agreed  by 
the  party  of  the  second  part  that  he  ■will  use 
the  said  demised  and  leased  premises  for  the 
purpose  of  conducting  a  jsrrocery  store  (or  wliat- 
ever  the  use  may  be),  and  for  no  other  purpose, 
and  that  he  Trill  so  conduct  said  business  in 
said  premises  so  that  it  shall  not  become  a 
nuisance  or  interfere  ^vlth  other  tenants  in  said 
premises. 

COVENANT  NOT  TO  SUBLET 
And  it  is  further  covenanted  and  agreed  that 
the  said  party  of  the  second  part  shall  not 
underlease  or  sublet  the  T»hole  or  any  part  of 
the  demised  premises,  or  in  any  other  manner 
part  Tvith  the  possession  or  occupation  of  the 
same,  Trithout  the  special  license  and  consent 
of  the  party  of  the  first  part.  In  writing,  first 
had    and    obtained. 

COVENANT  NOT  TO  ASSIGN 
And  it  is  further  covenanted  and  agreed  that 
the  said  party  of  the  second  part  shall  not 
assign  this  lease  during  any  part  of  the  demised 
term,  -tvlthout  the  special  license  and  consent 
of  the  party  of  the  first  part,  in  writing,  first 
had    and     obtained. 

COVENANT      PERMITTING      ASSIGNMENT      IF 
SUITABLE   TENANT  IS   FOUND 
And   it   is   further  covenanted  and   agreed  that 
the   said    party    of   the    second    part    may   assign 


THE  LAW  OF  REAL  ESTATE  147 

this  lease,  during  any  part  of  the  demised  term, 
If  a  tenant  be  found  -who  Is  aeceptable  to  the 
party  of   the   first   part. 

COVENANT   AS   TO   ALTERATIONS 
And   it  is  further  covenanted   and  agreed   tliat 
the     said     party    of    the    second     part     shall     not 
make,   or  permit   any  otlier  person   to  malve,  any 
alterations     of     the     demised     premises     without 
the   special   license   and   consent   of   tlie   party   of 
the     first     part,     in     -writing;,    first    had     and     ob- 
tained. 
COVENANT       BY       LANDLORD       TO       MAKE 
REPAIRS 
And  It  is  further  covenanted   and  agreed  that 
the    party    of    tlie    first    part    shall,    at    his    own 
expense,    from    time    to    time,    and    at    all    times 
during    said    term,    well    and    sufficiently    repair 
said   premises,   witli   the  appurtenances,   as   often 
as  reasonable  need  or  occasion  shall  require. 

COVENANT  BY  TENANT  TO  MAKE  REPAIRS 
And  it  is  further  covenanted  and  agreed  that 
the  party  of  the  second  part  shall,  at  his  oitu 
expense,  from  time  to  time,  and  at  all  times 
during  said  term,  T\'ell  and  sufficiently  repair, 
sustain,  nuiintaln,  cleanse,  glaze,  empty,  and 
keep  said  premises,  ^vlth  the  appurtenances, 
as  often  as  reasonable  need  or  occasion  shall 
require,  ordinary  ^vear  and  tear  and  casualties 
by  tlie  elements  ^vhich  may  accidentally  destroy, 
consume,  bum  down  or  burn  up  the  said  prem- 
ises,  or   any   part   thereof,   only   excepted. 

COVENANT  BY  LANDLORD  TO  PAY  TAXES 
And  it  is  further  covenanted  and  agreed  that 
the  party  of  the  first  part  shall  pay  and  dis- 
cliarge  all  taxes  and  assessments  ^vhich  may 
be    levied   during   said   term   upon   said   premises. 

COVENANT  BY  TENANT  TO  PAY  TAXES 
And  it  is  further  covenanted  and  agreed  that 
the  party  of  the  second  part  sliall,  as  additional 
rent  and  consideration,  pay  and  discliarge  all 
taxes  which  may  be  levied  during  said  term 
upon    said    premises. 

COVENANT    TO    RENEW    LEASE 
And   it  is   further  covenanted   and  agreed   that 
the     said     party     of     the     first     part,     the     lessor 


148    THE  LAW  OF  REAL  ESTATE 

herein,  if  so  requested  hy  the  said  party-  of 
the  second  part,  the  lessee  herein,  at  least 
(thirty  days)  before  the  expiration  of  the  term 
herein  in  this  lease  speelHed^  shall  and  will 
grant  a  further  lease  of  the  aforesaid  premises 
to  the  said  party  of  the  second  part,  the  lessee 
herein,  for  the  further  term  of  (ilve)  years,  to 
commence  from  the  expiration  of  the  term  here- 
by granted,  at  and  under  the  (same,  or  as  the 
case  may  be)  yearly  rent  and  covenants  and 
agreements    as    herein    contained. 

COVENANT  OF  OPTION  TO  PURCHASE 
And  it  is  further  covenanted  and  agreed  that 
if  the  said  party  of  the  second  part,  or  his 
assigns,  at  any  time  during  the  said  term,  shall 
desire  to  purchase  the  hereiu  leased  premises 
for  the  sum  of  (so  many  dollars),  in  gold  coin 
of  the  United  States,  and  shall  tender  said 
amount  to  the  said  party  of  the  first  part,  to- 
gether vrith  all  rent  due  up  to  the  time  of 
said  tender,  then  this  lease  is  by  said  tender 
terminated,  and  the  said  party  of  the  first  part 
will  on  the  same  day  malie,  acltnowledge,  and 
deliver  to  said  party  of  the  second  part,  or  his 
grantee,    a    grant    of    said    premises. 

By  following  the  above  plan  of  making 
a  paragraph  of  each  separate  item  of  the 
agreement,  and  starting  each  paragraph 
with  the  same  words,  to  wit:  "And  it  is 
further  covenanted  and  agreed,"  and 
then  numbering  the  paragraphs  in  rota- 
tion, greater  uniformity  and  simplicity 
is  preserved,  there  is  not  so  much  oppor- 
tunity for  the  language  to  become  com- 
plicated, and  the  intentions  of  the  parties 
can  be  more  readily  and  easily  arrived 
at. 

In  Case  of  Complicated  Leases. — A 
simple,  ordinary,   every-day  lease  can   be 


THE  LAW  OF  REAL  ESTATE  149 

drawn  up  by  almost  anybody,  but  where 
the  term  is  a  long  one,  and  many  re- 
strictions as  to  use  and  reversion,  build- 
ing operations,  or  other  important  mat- 
ters involving  legal  technicalities  are  to 
be  provided  for  and  incorporated  there- 
in, the  parties  should  without  doubt 
exercise  the  part  of  prudence  and  secure 
the  services  of  a  competent  attorney  well 
versed  in  the  law  of  real  property. 

Form  for  Farm  Lease. — The  following 
form  for  the  lease  of  agricultural  lands 
is  in  general  use  in  California,  and  will 
meet  all  requirements  by  following  the 
general  form  of  the  wording,  simply 
making  whatever  changes  may  be  neces- 
sary according  to  the  terms  of  the  lease. 

The  words,  "to  farm  let,"  seem  to  be 
considered  requisite  in  all  leases  of  farm 
lands. 

In  the  absence  of  any  clause  in  the 
contract  to  the  contrary,  a  tenant  for 
years  or  at  will,  while  legitimately  in 
possession,  mav  occupy  the  buildings, 
take  the  annual  products  of  the  soil,  and 
work  mines  and  quarries  open  at  the 
commencement  of  his  tenancy.  If  he 
does  so  while  wrongfully  holding  over 
he  is  liable  for  damages. 


150    THE  LAW  OF  REAL  ESTATE 

FARM  LEASE 

THIS  LEASE,  made  this  (first  day  of  Janu- 
ary, 1920),  between  (James  Spencer),  of  the 
county  of  (El  Dorado),  state  of  California,  party 
of  the  first  part,  and  (Henry  Hodges),  of  the 
county  of  (Sonoma),  state  of  California,  party 
of  the   second   part,   witnesseth: 

That  the  said  party  of  the  first  part,  for  and 
in  consideration  of  the  rents,  covenants  and 
agretiuents  hereinafter  mentioned,  reserved  and 
contained,  on  the  part  and  in  behalf  of  the 
said  yarty  of  the  second  part  to  be  paid,  kept 
and  nerformed,  does  hereby  grant,  demise,  and 
to  favm  let  unto  the  said  party  of  the  second 
part  all  those  certain  premises  described  as 
follo^vs,  to-wit:  .(here  describe  the  premises 
intended  to  be  leased  as  definitely  as  possible), 
for  the  term  of  (four)  years,  commencing  on 
the  <Srst  day  of  March,  1920),  and  ending  on 
the  (29th  day  of  February,  1924),  for  and  at 
the  yearly  rent  of  (so  many  dollars),  payable 
(at  such  times  as  may  be  agreed),  in  gold  coin 
of   the   United    States. 

And  the  said  party  of  the  second  part  does 
hereby  covenant  and  agree  to  pay  to  the  said 
party  of  the  first  part  the  said  rent  herein 
reserved    in    the    manner    herein    specified. 

To  have  and  to  hold  the  said  demised  prem- 
ises unto  the  said  party  of  the  second  part,  for 
his  sole  and  proper  use  and  benefit,  for  and 
during  the  term  aforesaid,  together  -with  all 
the  tonements  and  hereditaments  thereunto  ap- 
pertaining, and  all  the  stock  and  farming  uten- 
sils of  every  name  and  nature  no^v  being  in  or 
upon  the  same,  belonging  to  the  said  party  of 
the    lirst    part. 

In  consideration  -whereof  the  said  party  of 
the  second  part  hereby  covenants  and  agrees 
to  anil  with  the  said  party  of  the  first  part  that 
he  will  occupy,  till,  and  in  all  respects  cultivate 
the  premises  above  described,  during  the  term 
aforesaid,  In  a  farmer-like  manner,  j»nd  accord- 
ing t4>  the  usual  course  of  farming  practiced 
in  the  neighborhood;  that  he  will  not  commit 
any  ^vaste  or  damage,  or  suffer  any  to  be  done; 
that  iie  will,  at  his  own  cost  and  expense,  keep 
the  fences  and  buildings  on  said  premises  In 
good  repair,  reasonable  wear  thereof  and  dam- 
ages  by   the   elements   excepted. 


THE  LAW  OF  REAL.  ESTATE  151 

(Add  here  any  other  special  covenants  ^vhich 
may  be  aj?reed  upon,  then  eloHing  the  learse  as 
follows)  : 

And  It  is  further  covenanted  and  agrreed  that 
all  the  provisions  of  this  lease  shall  extend  to 
and  include  the  heirs  and  assigns  of  the  lessor, 
the  party  of  the  first  part,  and  the  executors, 
administrators,  and  assigns  of  the  lessee,  the 
party   of   the   second   part. 

In  T»-ltness  >viiereof,  tlie  said  parties  have 
hereunto  set  their  hands  the  day  and  year  first 
above    >vritten. 

(Signatures   of  parties ) 

Signed    and   delivered    in    tlie    presence   of: 

(Signatures  of  witnesses). 

If  the  land  is  to  be  farmed  on  shares, 
add  the  following-  paragraphs  after  the 
one  beginning,  "In  consideration  wliere- 
of,  etc.,"  leaving  out  the  portions  of  the 
first  and  second  paragraphs  about  the 
rent. 

And  that  he  Tvill  deliver  to  said  first  party, 
or  to  his  order,  each  year  during  the  term  of 
this  lease,  one  equal  (third)  of  all  the  proceeds 
and  crops  produced  on  the  said  farm  and  f>rem- 
ises  aforesaid,  of  every  kind,  name,  and  descrip- 
tion, to  be  divided  on  the  said  premises,  in  stack 
and  sack,  according  to  the  usual  course  and 
custom  of  making  such  divis'ions  in  the  neigh- 
borhood, and  in  a  seasonable  time  after  such 
crop  shall   have   been   gathered   and   har»-ested. 

And  it  is  furtlier  covenanted  and  agreed  that 
the  said  party  of  the  second  part  shall  find  all 
seed  or  seeds  necessary  to  be  so^vn  on  said 
premises,  and  sliail  do  or  cause  to  be  done  all 
neces>.ar>'  work  and  labor  in  and  about  the 
cultivation  of  said  premises;  that  he  is  to  liave 
full  permission  to  inclose,  pasture,  or  till  and 
cultivate  the  said  premises,  so  far  as  the  same 
may  be  done  without  injury  to  the  reversion, 
and  to  cut  all  necessary  timber  for  firewood, 
farming    purposes,    and    repairing    fences. 

Said  party  of  the  first  part  shall  furnish  on 
said  premises,  at  the  proper  time  in  each  year 
during   the    term    of    this    lease,    sacks    sufticient 


152    THE  LAW  OF  REAL  ESTATE 

to    hold    all    the    srain    coming    to    him    as    his 
share. 

Lease  By  Corporation. — The  property 
of  a  corporation  can  be  leased  only  by 
authority  of  its  board  of  directors.  It 
is  well  to  state  in  the  instrument  that 
the  lessor  therein  is  a  corporation,  and 
that  the  lease  is  made  pursuant  to  a  res- 
olution of  its  directors  duly  passed.  See 
remarks  and  phraseology  under  the  head- 
ing of  "Form  of  contract  of  sale  by  cor- 
poration,'' in  chapter  three. 

RECORDING  LEASE 

Lease  Not  Exceeding  One  Year. — A 
lease  NOT  EXCEEDING  ONE  YEAR 
NEED  NOT  BE  RECORDED,  even  if 
the  lease  is  in  writing.  If  the  lease  is 
otherwise  all  right  it  is  valid  against 
everybody,  whether  recorded  or  not. 
Such  leases  oftentimes  are  recorded,  but 
only  because  of  a  misapprehension  of 
the  effect  thereof.  Nothing  can  be  add- 
ed to  its  validity  or  effectiveness  by  re- 
cording any  document  which  the  law 
does  not  require  to  be  recorded. 

Lease  for  More  Than  One  Year. — A 
lease  for  a  period  LONGER  THAN 
ONE  YEAR  MUST  BE  RECORDED 
to  be  valid  against  others  than   the   les- 


THE  LAW  OF  REAL  ESTATE  153 

sor  and  lessee.  It  is  just  as  valid  and 
effective  between  them  if  not  recorde(J, 
but  is  void  against  any  subsequent  pur- 
chaser or  mortgagee  of  the  leased  prop- 
erty, in  good  faith,  and  for  a  valuable 
consideration,  whose  conveyance  or 
mortgage  is  FIRST  duly  recorded. 

To  illustrate :  Jones  leases  his  ware- 
house to  Brown  for  ten  years.  The  lease 
is  not  recorded.  In  the  meantime  Jones 
sells  the  property  to  Thompson.  If 
Thompson  records  his  deed  before  the 
lease  is  recorded  Brown's  lease  is  thus 
rendered  void,  and  Thompson  can 
throw  him  out  if  he  chooses.  Thomp- 
son's purchase  of  the  property  must, 
liowever,  be  in  good  faith.  If  he  had 
knowledge  of  Brown's  lease  the  case 
would  be  different.  Such  knowledge 
would  have  the  same  effect  that  record- 
ing the  lease  would ;  therefore  the  lease 
would  be  good  against  Thompson,  and 
he  could  not  remove  Brown  because  of 
the  fact  that  his  lease  was  not  recorded. 
Actual  knowledge  of  a  thing  is  just  as 
effective  as  notice  of  the  existence  of  the 
thing  as  any  information  which  can  be 
gotten  from  the  books  of  record,  and 
has  practically  the  same  force  and  effect. 

A  lease  for  more  than  one  year  is  also 


154    THE  LAW  OF  REAL  ESTATE 

void  as  against  any  judgment  affecting 
the  title  of  the  property  unless  it  shall 
have  been  duly  recorded  prior  to  the  be- 
ginning of  the  action  in  which  such 
judgment  is  rendered. 

Must  Be  Acknowledged  Before  Re- 
cording.— Before  a  lease  can  be  record- 
ed it  must  be  acknowledged  before  a  no- 
tary public  or  other  competent  person 
authorized  to  take  acknowledgments.  It 
can  then  be  recorded  by  either  party,  at 
any  time  during  its  term.  Forms  for  the 
acknowledgment  of  leases  are  the  same 
as  required  for  the  acknowledgment  of 
deeds,  and  can  be  found  in  the  chapter  on 
the  ''Transfer  of  Real  Property." 

ASSIGNMENT  OF  LEASE 

Definition  of  Assignment. — If  the  les- 
see parts  with  or  conveys  x\LL  his  right 
and  interest  in  the  lease,  for  the 
WHOLE  of  the  remaining  portion  of  his 
term,  it  is  deemed  to  be  an  assignment; 
but  if  only  a  portion  of  the  lessee's  in- 
terest is  conveyed,  or  the  whole  of  his 
interest  for  only  a  portion  of  his  term, 
it  is  a  sublease.  The  distinction  is 
sometimes  very  important. 

Right  of  Lessee  to  Assign. — Unless 
the  lessee  is  restrained  from  so  doing  by 


THE  LAW  OF  REAL  ESTATE  155 

the  terms  of  the  lease  he  may  assign  all 
his  right  and  interest  therein  to  other 
parties  without  the  consent  of  the  lessor. 
If  there  is  a  restraining  clause  in  the 
contract  he  must  first  obtain  the  WRIT- 
TEN CONSENT  of  the  lessor  to  the  as- 
signment. 

An  assignee  may  also  re-assign  to  an- 
other assignee  if  there  is  no  restriction 
to  the  contrary. 

Who  Responsible  in  Case  of  Assign- 
ment.— Where  there  is  an  assignment  of 
the  lease  the  lessor  may  look  to 
EITHER  the  assignee  or  to  the  original 
lessee  for  the  rent.  The  assignee  takes 
the  premises  subject  to  all  the  terms  and 
conditions  of  the  original  lease  regard- 
ing the  payment  of  rent,  repairs,  use  of 
the  property,  and  all  other  matters  in- 
corporated therein ;  and  for  violation  of 
any  of  its  terms  the  lessor  has  the  same 
remedies  against  the  assignee  as  against 
the  lessee  for  any  cause  of  action  accru- 
ing while  they  are  assignees,  except 
where  the  assignment  is  made  for  se- 
curity for  a  loan,  and  the  lessee  does  not 
give  up  possession  of  the  premises. 

But,  as  stated,  the  assumption  of  the 
obligations  of  the  contract  by  the  as- 
signee  does  not  in   any   way   release  the 


156    THE  LAW  OP  REAL  ESTATE 

original  lessee  from  his  obligations  to 
the  original  lessor;  and  unless  the  lessor 
agrees  in  writing  to  release  the  original 
lessee  from  the  obligations  imposed  by 
the  contract,  and  accepts  the  transfer  of 
the  liability  for  their  performance  to  the 
assignee  in  his  stead,  then  the  original 
lessee  will  still  be  responsible  to  him 
whenever  the  assignee  fails  to  pay  the 
rent  or  observe  the  other  covenants  of 
the  agreement. 

Acceptance  of  Assignee  As  Tenant  By 
Receiving  Rent  From  Him. — It  has  been 
held  that  where  a  lessor  accepts  rent 
from  the  assignee  and  gives  him  a  re- 
ceipt therefor  in  his  name,  he  thereby 
impliedly  accepts  the  assignee  as  his 
own  tenant,  which  would  have  the  ef- 
fect of  relieving  the  original  lessee  from 
all  the  obligations  imposed  by  the  lease. 

Unlawful  Assignment  Terminates 
Lease. — Any  tenant  or  subtenant  as- 
signing the  leased  premises  contrary  to 
the  provisions  of  his  lease,  thereby  ter- 
minates the  lease,  and  the  landlord  shall, 
upon  service  of  proper  notice  to  quit 
upon  the  person  or  persons  in  possession 
be  entitled  to  restitution  to  him  of  such 
premises.     See  ''Forfeiture  of  Lease." 

Forms    for    Assignment    of    Lease. — 


THE  LAW  OF  REAL  ESTATE  157 

Where  the  lease  has  not  been  recorded, 
the  assignment  may  be  endorsed  on  the 
instrument  itself,  in  words  as  follows : 

ASSIGNMENT  OF  LEASE 

I  hereby  graut,  sell,  assign,  and  set  over  un- 
to (name  of  assignee),  all  my  right,  title,  and 
interest    to,   in,   and   under   the   within   lease. 

(Signature   of   assignor ) 

(Date ) 

Where  the  lease  has  been  recorded, 
the  following  form  for  the  assignment 
should  be  used. 

ASSIGNMENT  OF  RECORDED  LEASE 
Kno>v  all  men  by  these  presents:  That  (name 
of  the  lessee  in  the  lease  to  be  assigned),  the 
party  of  the  first  part,  for  and  in  considera- 
tion of  the  sum  of  (so  many  dollars),  to  him 
in  hand  paid  by  (name  of  assignee),  the  re- 
ceipt of  T»hich  is  hereby  acknowledged,  does  by 
these  presents  grant,  bargain,  sell,  assign, 
transfer  and  set  over  unto  the  said  party  of 
the  second  part,  a  certain  lease,  bearing  date 
the  (insert  date  of  lease),  made  and  executed 
by  (name  of  lessor),  to  (name  of  lessee),  and 
recorded  on  the  (tenth  day  of  October,  1950), 
In  book  (176)  of  leases,  at  page  (122)  in  the 
office  of  the  county  recorder  of  (Alameda)  coun- 
ty, state  of  (California),  of  and  to  the  follow- 
ing real  property,  to-wlt: 

(Description    of    property,    same    as    In    lease): 
In    witness    whereof,    the    said    party    of    the 
first    part    has    hereunto    set    his    hand    the    (first 
day  of  January,  1951). 

(Signature   of  assignor ) 

Where  the  consent  of  the  lessor  to  the 
assignment  is  necessary,  the  following 
form  will  suffice : 

LESSOR'S    CONSENT     TO    ASSIGNMENT 
I    (name   of  lessor   In   the  lease),  lessor  In   fhe 
lease    above    described,    hereby    consent    to    tlie 


158    THE  LAW  OF  REAL  ESTATE 

above  assignntent,  this  (first  day  of  January, 
1951). 

( Signature    of    lessor ) 

Recording     Assignment    of     Lease. — 

^^"here  the  lease  itself  is  recorded  the  as- 
signment thereof  should  be  also.  It 
must  be  acknowledged  before  it  can  be 
recorded. 

SUBLETTING  LEASE 

Lessee  May  Sublet  Unless  Restrained. 

— The  lessee  may  sublet  all  or  part  of 
the  leased  premises  in  the  absence  of  any 
provision  in  the  contract  restraining  him 
from  doing  so.  If  there  is  such  a  re- 
striction then  he  must  have  the  WRIT- 
TEN CONSENT  of  the  lessor. 

Definition  of  Sublease. — It  is  a  sub- 
lease where  a  PORTION  of  the  leased 
premises  is  re-leased  by  the  lessee  there- 
of to  other  tenants  for  either  a  part  or 
for  the  whole  of  his  term.  It  is  also  a 
sublease  where  the  WHOLE  of  the 
premises  are  re-let  by  the  lessee  thereof 
for  a  portion  of  his  term  only. 

W^hen  the  original  lessee  parts  with 
ALL  his  interest  in  the  premises  it  is 
not  a  sublease,  but  is  an  assignment 
thereof;   the   distinction  is  important. 

Subtenant  May  Also  Sublet. — The 
sublessee  ma}^  also   sublet  to   other   par- 


THE  LAW  OF  REAL  ESTATE  159 

ties  where  there  is  no  restriction  to  the 
contrary. 

Lessee  Still  Liable  for  the  Rent. — The 
fact  that  the  lessee  sublets  does  not  af- 
fect his  liability  to  the  lessor  for  the 
rent.  The  lessor  knows  only  his  imme- 
diate lessee  in  the  transaction,  and  is 
bound  to  look  only  to  him  for  his  com- 
pensation. He  cannot  hold  the  subten- 
ant liable,  for  the  subtenant  is  responsi- 
ble only  to  the  party  with  whom  he  con- 
tracted. The  lessor,  may,  however, 
agree  to  accept  the  subtenant  as  his  im- 
mediate tenant,  and  to  look  to  him  for 
the  rent  in  lieu  of  the  original  lessee,  in 
which  case  the  subtenant  would  be  re- 
sponsible to  the  original  lessor,  and  the 
original  lessee  would  thereby  be  relieved 
from  his  obligation  to  pay  the  rent  dur- 
ing the  continuance  of  the  term  of  such 
subtenancy. 

Also,  if  the  original  lessee  surrenders 
his  lease,  and  the  subtenant  remains  in 
possession,  and  the  lessor  accepts  rent 
from  him,  he  then  becomes  the  tenant  of 
the  lessor. 

Subtenants  Are  Bound  By  Terms  of 
Lease. — Subtenants  are  supposed  to 
make  inquiry  and  therefrom  to  know  the 
terms  of  the  lease  under  which  thev  sub- 


160    THE  LAW  OF  REAL  ESTATE 

let,  and  they  are  therefore  bound  by  its 
conditions.  Xo  new  agreements  can  be 
added  which  will  bind  the  lessor  beyond 
those  contained  in  the  original  contract. 
Nothing  can  be  added  and  nothing  taken 
away. 

Therefore  a  cancellation  of  the  orig- 
inal lease  cancels  also  the  sublease. 
Likewise,  a  notice  to  quit  binds  also  the 
undertenants. 

Subtenant  May  Prevent  Forfeiture  of 
Lease. — Any  subtenant  or  other  person 
interested  in  the  lease  may  prevent  the 
forfeiture  thereof  for  violation  of  any  of 
its  provisions  by  performance  of  the  ob- 
ligation which  is  violated.  That  is,  if  the 
lessee  has  not  paid  his  rent,  for  instance, 
and  is  served  with  notice  to  do  so  or 
give  up  possession  of  the  premises,  upon 
the  lessee's  failure  to  pay  as  demanded 
any  other  person  interested  may  do  so 
within  the  time  allowed  by  law  and  thus 
save  the  lease  from  forfeiture.  No  mat- 
ter from  whom  the  lessor  receives  the 
rent  its  payment  will  extinguish  the  de- 
mand therefor. 

The  same  is  true  in  case  of  violation 
of  any  other  of  the  conditions  of  the 
lease;    the    lessor's    demand  is    satisfied 


THE  LAW  OF  REAL  ESTATE  161 

when  any  other  person  interested  per- 
forms the  thing  demanded. 

Unlawfully       Subletting      Terminates 

Lease. — Any  tenant  or  subtenant  sub- 
letting the  leased  premises,  contrary  to 
the  provisions  of  his  lease,  thereby  term- 
inates the  lease,  and  the  landlord  shall, 
upon  service  of  proper  notice  to  quit  up- 
on the  person  or  persons  in  possession, 
be  entitled  to  restitution  to  him  of  such 
premises.     See  "Forfeiture  of   Lease." 

WITNESSES 

Not  Required  By  Law,  but  a  Useful 
Precaution. — The  law  does  not  require 
that  there  shall  be  witnesses  to  a  lease 
of  real  property,  but  it  is  well  to  have 
at  least  one  witness,  for  the  purpose  of 
more  conveniently  proving  the  instru- 
ment, if  necessary.  Better  still  to  have 
two,  so  that  either  may  testify,  if  need- 
ed, should  the  other  be  unable  to  ap- 
pear. 

SEALS 

Necessity  for  Their  Use  Abolished. — 
There  is  no  distinction  in  this  state 
between  a  sealed  and  an  unsealed  in- 
strument and   it   is  not   necessary  to  use 


162    THE  LAW  OF  REAL  ESTATE 

either  a  wafer  or  a  pen  scroll  in  any 
form  after  a  signature  to  a  lease  to  rep- 
resent a  seal.  Neither  is  it  necessary  to 
say,  "Witness  my  hand  and  seal;"  "Wit- 
ness my  hand"  is  sufficient. 


CHAPTER  VI. 


REAL  ESTATE  AGENTS 


It  is  quite  remarkable  how  many  ac- 
tions are  brought  in  the  courts  by  real 
estate  agents  for  the  recovery  of  com- 
missions which  they  claim  to  have 
earned.  In  many  cases,  doubtless,  they 
really  have  earned  them,  but  they  often 
meet  with  failure  in  their  efforts  to  re- 
cover their  fees  because  they  overlooked 
the  necessity  of  complying  with  some 
imperative  provision  of  the  law,  their 
negligence  in  this  respect  acting  as  a. 
bar  to  obtaining  redress  by  legal  action. 

In  this  chapter  an  endeavor  will  be 
made  to  present  and  illustrate  certain 
well-defined  rules  of  law  and  practice 
which  must  be  strictly  complied  with  by 
the  agent  before  he  can  enforce  com- 
pensation for  his  services  by  legal  pro- 
cess ;  and  although  most  of  these  laws 
have  been  on  the  statute  books  for  many 
years,  they  unfortunately  seem  to  be  un- 
known to    many   whose   business   would 


164    THE  LAW  OF  REAL  ESTATE 

particularly    seem    to    require  a    knowl- 
edge of  them. 

CONTRACT  OF  EMPLOYMENT 
MUST  BE   IN  WRITING 

The  Statute  of  Frauds. — Away  back 
in  the  seventeenth  century  there  was 
enacted  in  England  during  the  reign 
of  Charles  II  a  series  of  laws  known  then 
and  now  as  the  "Statute  of  Frauds."  This 
statute,  modified  and  changed  to  suit 
local  conditions,  has  been  re-enacted  in 
some  form  in  every  state  of  our  Union. 

The  principal  object  of  the  statute 
was  intended  to  be  the  prevention  of 
fraud  and  perjury  by  requiring  certain 
specified  contracts  to  be  put  IN  WRIT- 
ING. This,  it  was  supposed,  would  les- 
sen fraudulent  practices.  Yet  it  is 
doubtful  if  it  really  has  accomplished 
that  end,  for  it  undoubtedly  has  been  the 
convenient  means  of  enabling  persons  to 
injure  others  by  furnishing  them  a  ready 
escape  from  the  duty  of  fulfilling  con- 
tracts which  were  honestly  made,  but 
which  they  did  not  wish  to  execute. 
Many  contracts  made  in  good  faith  have 
not  been  enforced  because  not  reduced 
to  writing  and  properly  subscribed;  and 
many  a  broker  has  lost  his  commission 


THE  LAW  OF  REAL  ESTATE  165 

because  of  the  neglect  of  this  all-import- 
ant provision  of  the  law. 

But  although  the  statute  of  frauds  is 
one  of  the  oldest  in  legal  practice,  still 
many  are  not  familiar  with  it,  and  con- 
sequently fail  to  observe  it. 

The  Statute  of  Frauds  as  Applied  to 
the  Real  Estate  Agent. — The  Statute  of 
Frauds  as  it  now  exists  in  the  State  of 
California  reads: 

"The  following  contracts  are  IN- 
VALID, unless  the  same,  or  some  note 
or  memorandum  thereof,  is  in  writing, 
and  subscribed  by  the  party  to  be 
charged  or  by  his  agent." 

It  then  enumerates  the  different  sorts 
of  contracts  which  must  be  in  writing, 
but  only  those  contained  in  sections  five 
and  six  will  be  considered  here,  they  be- 
ing of  special  application  to  the  real  es- 
tate agent. 

Section  5 :  ''An  agreement  for  the 
leasing  for  a  longer  period  than  one 
year,  or  for  the  sale  of  real  property,  or 
of  an  interest  therein ;  and  such  agree- 
ment, if  made  by  an  agent  of  the  party 
sought  to  be  charged,  is  invalid,  unless 
the  authority  of  the  agent  is  in  writing, 
subscribed  by  the  party  sought  to  be 
charged." 


166    THE  LAW  OF  REAL  ESTATE 

The  matter  of  leases  has  been  thor- 
oughly gone  into  in  the  chapter  on 
"Landlord  and  Tenant,"  and  the  matter 
of  contracts  relating  to  the  sale  of  real 
property  in  the  chapter  on  "Contracts 
of  Sale  of  Real  Propertv."  Suffice  it  to 
repeat  here,  that  EVERY  CONTRACT 
for  the  sale  of  real  property,  or  in  any 
way  affecting  real  property,  or  the  con- 
veyance of  the  same,  either  permanently 
or  for  a  limited  time,  with  the  single  ex- 
ception of  a  lease  for  not  more  than  one 
year,  must  be  IN  WRITING. 

Section  6:  "An  agreement  authoriz- 
ing or  employing  an  AGENT  or  BRO- 
KER to  purchase  or  sell  real  estate  for 
compensation    or    comm.ission." 

Necessity  of  Having  Authorization  in 
Writing  is  Imperative. — There  are  no 
qualificatons  in,  to,  or  about  the  section 
quoted  above.  The  authority  of  the 
agent  to  buy,  sell,  or  lease  real  property 
must  be  in  writing,  and  must  be  signed 
by  the  owner  or  other  proper  person,  or 
by  some  one  authorized  to  act  for  him. 

It  must  not  be  misunderstood  as 
meaning"  that  an  oral  authority  to  an 
agent  is  not  valid,  for  it  is;  it  is  just  as 
good  as  a  written  one  as  far  as  it  goes. 
The    statute    does   not  render   oral    con- 


THE  LAW  OP  REAL  ESTATE  167 

tracts  void,  but  means  that  no  action  can 
be  brought  to  recover  on  them.  It  takes 
away  the  remedy.  In  other  words,  an 
oral  authority  to  sell  real  estate  has  no 
standing  in  court.  Such  contracts  are  all 
right  so  long  as  there  is  no  trouble  over 
them,  but  no  action  to  enforce  them  .or 
any  of  their  provisions  can  be  main- 
tained in  a  court  of  justice. 

It  should  therefore  be  very  plain,  that 
no  commissions  or  compensation  for  his 
services  whatsoever  can  be  collected  by 
the  agent  by  an  action  at  law  unless  he 
is  prepared  to  produce  a  written  agree- 
ment authorizing  him  to  act  in  the 
capacity  for  which  he  claims  compensa- 
tion. 

There  is  no  limitation  or  qualification 
to  the  above  statement.  It  is  true  even 
to  the  extent  that  if  the  agent  without 
written  authority  actually  makes  a  sale, 
and  the  ow^ner  actually  accepts  the 
terms,  receives  the  money,  and  delivers 
the  deed,  the  agent  cannot  recover  one 
penny  for  his  services  if  the  owner  sees 
fit  to  refuse  to  pay  him. 

Neither  would  any  deal  made  by  the 
agent  without  written  authority  be  bind- 
ing upon  his  principal,  who  could  back 
out  of  any  transaction  at  any   time  be- 


168    THE  LAW  OF  REAL  ESTATE 

fore  its  actual  consummation,  and 
neither  the  agent  nor  his  customer 
would  have  any  redress. 

Defendant  Must  Plead  Statute.— As 
the  Statute  of  Frauds  is  a  defense  solely, 
the  party  who  is  sued  must  set  up  in  his 
answer  the  fact  that  the  contract  was  not 
in  writing  if  he  wishes  to  make  that  his 
defense;  otherwise  he  will  be  deemed  to 
have  waived  that  objection. 

The  Agent's  Contract. — The  authority 
from  the  owner  to  the  agent  to  sell  or 
barter  property  is  not  required  to  be  in 
any  particular  form.  It  may  come  to  him 
from  the  owner  in  the  form  of  a  letter, 
or  letters,  telegram,  formal  printed  con- 
tract, or  any  other  manner  so  long  as  it 
is  in  writing,  and  contains  direct  and 
positive  authority  to  dispose  of  the  prop- 
erty by  sale,  lease,  barter  or  exchange. 

The  amount  of  the  agent's  commission 
need  not  be  stated  in  the  contract.  While 
it  is  well  to  do  so,  it  is  not  necessary. 
His  services  will  be  worth  their  reason- 
able value,  and  in  the  absence  of  any 
stated  amount  will  be  governed  by  the 
usual  rates  and  customs  prevailing  in 
the  community. 

Contracts  Between  Agents. — The  pro- 
visions of  the  Statute  of  Frauds   do   not 


THE  LAW  OF  REAL  ESTATE  169 

extend  to  agents  who  co-operate  with 
each  other.  Where  an  agent  offers  to 
employ  another  agent  to  assist  him  in 
the  disposal  of  property  for  which  he 
holds  the  agency  such  employment  need 
not  be  in  writing.  In  other  words, 
agents  may  agree  verbally  with  each 
other  to  divide  a  commission. 

WHEN  AGENT  IS  ENTITLED  TO 
COMMISSIONS 

The  Rule  in  California. — Presuming 
that  the  agent  is  lawfully  authorized  to 
negotiate  the  sale  or  purchase  of  real  es- 
tate in  compliance  with  the  requirements 
of  the  law,  as  stated  above,  the  next 
point  to  be  considered  is,  when  is  he 
deemed  to  have  rendered  services  suffi- 
cient to  entitle  him  to  payment  therefor 
on  a  commission  basis?  In  the  follow- 
ing paragraphs  will  be  shown  his  status 
in  this  respect,  based  upon  numerous  de- 
cisions of  the  Supreme  Court  of  the 
state. 

In  Case  of  Open,  or  Non-exclusive, 
Agency. — It  may  be  remarked  in  com- 
mencing that  the  real  estate  agent's  right 
of  recovery  depends  upon  his  contract 
with  the  owner  of  the  land ;  and  he  may 
make  almost  any  kind  of  a  contract  upon 


170    THE  LAW  OF  REAL  ESTATE 

which  his  right  to  commission  may  de- 
pend. 

An  agent  or  broker  is  designated  as 
a  person  whose  business  it  is  to  bring 
buyer  and  seller  together.  Unless 
specially  authorized  he  has  nothing  to  do 
with   the  negotiation  of   the   bargain. 

Or,  if  he  cannot  bring  the  buyer  and 
seller  together,  it  then  becomes  his  duty 
to  procure  from  the  buyer  a  valid  con- 
tract to  purchase,  which  contract  must 
in  all  cases  be  in  writing,  and  be  pre- 
sented without  delay  to  the  seller. 

Probably  the  far  greater  portion  of 
property  in  the  hands  of  agents  is  simply 
listed  with  them  on  the  open  agency 
basis;  that  is,  they  are  simply  given 
authority  to  find  a  purchaser.  There  is 
usually  no  specified  time  set  in  which  to 
find  the  purchaser,  and  in  such  case  the 
agency  is  presumed  to  continue  until  the 
property  is  sold,  or  the  agent  is  notified 
of  its  withdrawal  from  his  agency,  or 
from  the  market.  If  the  same  piece  is 
listed  with  several  agents,  the  one,  of 
course,  w^ho  first  finds  a  buyer  is  entitled 
to  the  commission.  The  owner  may  also 
sell  his  property,  if  he  finds  a  purchaser 
first,  without  incurring  liability  to  any 
one. 


THE  LAW  OF  REAL  ESTATE  171 

What   Finding  a  Purchaser   Means. — 

The  following,  which  is  a  synopsis  of 
the  decisions  in  several  leading  cases  in 
this  state,  fixes  definitely  the  status  of 
the  agent,  and  the  duty  resting  upon  him 
before  he  can  be  considered  to  be  en- 
titled to  remuneration  for  his  services : 

To  entitle  the  broker  to  recover  com- 
missions for  effecting  the  sale  of  real 
property,  he  must  show  that  he  was  em- 
ployed by  or  on  behalf  of  the  owner  to 
make  the  sale,  and  that  his  authority,  or 
some  note  or  memorandum  thereof,  was 
in  writing,  signed  by  the  owner,  or  by 
his  authorized  agent.  And  before  a 
broker  can  be  said  to  have  earned  his 
commission  it  must  also  be  shown  that 
he  produced  a  purchaser  who  was  ready 
and  willing  and  able  to  make  the  pur- 
chase on  terms  satisfactory  to  his  em- 
ployer, or  in  conformity  with  the  price, 
terms  and  conditions  as  set  forth  in  his 
contract  of  employment,  and  that  he  was 
the  efficient  agent  or  procuring  cause  of 
the  sale. 

Finding  a  purchaser  means  more  than 
finding  some  one  who  will  oi¥er  to  nego- 
tiate for  the  purchase.  It  implies  the 
production  of  one  who  is  not  only  ready 
and  willing  to  comply  with  the  terms  of 


172    THE  LAW  OF  REAL  ESTATE 

the  sale,  but  who  has  also  the  present 
ability  to  consummate  it,  by  doing  all 
the  acts  that  may  be  required  of  him  to 
make  an  actual  transfer  of  the  land.  To 
produce  one  who  makes  an  offer  of  pur^ 
chase,  and  who  is  without  means,  or  who 
is  not  in  condition  to  comply  with  the 
terms  of  the  sale,  and  against  whom  a 
claim  for  damages  resulting  from  a  fail- 
ure to  perform  the  contract  of  purchase 
could  not  be  enforced,  does  not  consti- 
tute the  finding  of  a  purchaser  within 
the  meaning  of  the  law;  and  the  mere 
statement  by  one  who  is  produced  that 
he  is  ready  and  willing  to  make  the  pur- 
chase is  not  suflicient,  for  he  must  satis- 
fy the  owner  that  he  also  has  the  ability 
to  do  so.  The  owner  has  the  right  to  an 
enforceable  contract,  if  the  sale  is  not 
to  be  consummated  immediately. 

The  agent  is  never  entitled  to  commis- 
sions when  unsuccessful.  The  risk  of 
failure  to  find  a  purchaser  who  is  ready 
and  willing  is  wholly  his.  Reward  comes 
only  with  success.  He  may  devote  his 
time  and  labor,  and  spend  his  money, 
and  yet  if  he  fails  or  abandons  the  effort, 
or  if  his  authority  is  fairly  and  in  good 
faith  terminated,  he  gains  no  right  to 
commissions,   no   matter    of  what    value 


THE  LAW  OF  REAL  ESTATE     173 

the  efforts  which  he  has  made  may  after- 
wards prove  to  his  employer. 

As  a  sequence,  then,  it  necessarily  fol- 
lows that  where  the  agent  produces  a 
party  with  the  ability  to  purchase,  and 
who  is  ready  and  willing  to  do  so  at  the 
price  and  terms  set  upon  the  property, 
he  is  entitled  to  his  commissions,  even 
if  the  owner  backs  out  and  refuses  to 
complete  the  deal. 

The  same  is  equally  true  if  the  agent 
simply  brings  the  buyer  and  the  seller 
face  to  face,  without  taking  any  further 
part  in  the  negotiations  whatsoever,  if 
therefrom  a  sale  results,  no  matter  on 
what  terms  or  conditions.  The  fact  that 
the  sale  is  ultimately  made  at  a  different 
price  from  the  figure  at  which  the  agent 
was  authorized  to  sell  will  not  make  any 
dift'erence ;  if  the  agent  was  the  means  of 
bringing  the  parties  together,  he  is  en- 
titled to  compensation  for  so  doing  on 
whatever  transactions  may  subsequently 
occur  as  the  result  thereof,  provided  they 
were   within  the   scope  of  his   authority. 

A  somewhat  dift'icult  point  arises  here, 
however.  Where  no  specified  time  is 
set  in  the  agreement  with  the  agent 
within  which  he  must  effect  a  sale,  and 
he  produces  a  customer  who  begins  ne- 


174    THE  LAW  OF  REAL  ESTATE 

gotiations  with  the  owner,  which  fall 
down  and  are  abandoned  at  the  time,  but 
which  are  subsequently  renewed  between 
the  customer  and  the  owner,  without  the 
active  participation  of  the  agent,  result- 
ing in  a  sale,  is  the  agent  entitled  to 
commissions?  This  is  a  difficult  question 
to  answer.  Undoubtedly  yes,  if  the  sale 
be  made  within  a  reasonable  time  after 
he  brought  the  parties  together.  But 
what  constitutes  a  reasonable  time  can- 
not be  definitely  stated.  There  is  no  set 
rule,  and  each  particular  case  must 
stand  on  its  own  merits.  No  more  defi- 
nite answer  to  the  question  can  be 
given. 

Where  Contract  Specifies  Time  Limit 
Within  Which  to  Find  Purchaser.— But 
Avhere  there  is  a  time  limit  in  the  con- 
tract with  the  agent  within  which  he  is 
to  effect  a  sale,  it  must  appear  that  he 
performed  the  duty  assigned  him  strictly 
within  such  limit.  If  he  fails  to  do  that 
he  is  not  entitled  to  commissions,  even 
though  he  made  efforts  to  sell  the  prop- 
erty, and  first  called  to  it  the  attention 
of  the  party  who  subsequently  makes  the 
purchase,  unless  the  delay  in  completing 
the  sale  was  due  to  the  negligence,  fault, 
or  fraud  of  the  owner. 


THE  LAW  OF  REAL  ESTATE  175 

The  leading  case,  upon  which  the  Cali- 
fornia decisions  on  this  point  are  based, 
may  be  summed  up  thus: 

The  two  essentials  are,  that  the  bro- 
ker under  a  written  appointment  must 
either  produce  a  written  contract  to  pur- 
chase, or  introduce  to  the  seller  a  cus- 
tomer ready,  able,  and  willing  to  take 
the  property  upon  the  terms  stipulated; 
and  that  this  should  be  done  within  the 
time   limited   in  the  contract. 

In  this  case,  the  agent  had  two 
months  within  which  to  find  a  customer. 
He  did  so,  and  brought  him  face  to  face 
with  the  owner,  but  the  deal  fell 
through,  without  any  fault  of  the  owner, 
who  was  really  anxious  to  sell.  Subse- 
quently after  the  two  months  allowed 
the  agent  had  expired,  the  parties  got 
together  again,  and  the  sale  was  made. 
Upon  refusal  of  the  owner  to  pay  com- 
missions the  agent  brought  an  action  to 
recover  them. 

The  court  held,  that  while  it  was  true 
the  agent  was  instrumental  in  enabling 
the  owner  to  sell  his  land,  still,  as  they 
entered  into  written  stipulations  as  to 
the  terms  upon  which  the  agent  would 
be  entitled  to  commissions,  which  were 
that  he  must  produce  a  purchaser  within 


176    THE  LAW  OF  REAL  ESTATE 

two  months,  these  stipulations  must 
govern ;  and  as  the  agent's  customer 
failed  to  take  within  the  time  stipulated, 
the  owner  was  free  to  act  as  he  saw  fit. 
He  was  free  to  sell  to  the  agent's  cus- 
tomer, or  to  any  one  else,  and  was  un- 
der no  obligations  to  pay  commissions 
to  the  former  agent  under  the  contract, 
because  after  its  expiration  it  had  spent 
its  force. 

This  synopsis  of  the  generally  ac- 
cepted rule  makes  it  clear  that  where  the 
agent  is  operating  under  an  authority 
which  is  limited  as  to  time,  he  can  re- 
cover for  his  services  only  when  he  pro- 
duces results  within  that  time,  either  by 
producing  before  the  owner  a  buyer 
ready  to  comply  with  the  terms  of  the 
sale  as  set  forth  in  his  agreement  with 
the  agent,  or  else  a  valid  contract  of  pur- 
chase in  accordance  therewith ;  but  if  the 
agent  simply  produces  a  prospective  cus- 
tomer, the  price  and  terms  to  be  the  sub- 
ject of  future  negotiations,  and  such 
negotiations  are  not  concluded  Avithin 
the  time  limit  in  the  agent's  contract,  he 
cannot  then  claim  commissions  for  what 
he  has  done,  unless,  as  stated,  there  was 
fault  or  fraud  on  the  part  of  his  prin- 
cipal. 


THE  LAW  OF  REAL  ESTATE  177 

If  the  delay  in  closing  the  sale  or  the 
breaking  off  of  the  negotiations,  is 
caused  by  any  negligence,  fault,  fraud, 
or  design  on  the  part  of  the  owner  to  de- 
feat the  agent  of  his  commissions,  the 
agent  would  then  be  entitled  to  recover 
for   his  services,    but   not  otherwise. 

In  Case  of  Defective  Title. — The  agent 
has  nothing  to  do  with  the  title.  If  it 
proves  upon  search  to  be  defective  that 
is  no  fault  of  his.  And  unless  he  agrees 
that  his  commissions  shall  be  dependent 
upon  the  owner's  ability  to  furnish  a  sat- 
isfactory title,  he  will  be  entitled  to  his 
compensation  when  his  part  of  the  work 
is  done;  that  is,  when  he  has  supplied  a 
customer  able,  ready,  and  willing  to 
make  the  purchase.  The  owner  should 
know  if  his  title  is  good,  and  the  risk  is 
not  one  for  the  agent  to  bear.  There- 
fore the  courts  have  decided  that  if  the 
sale  is  not  completed  simply  because  the 
title  is  defective,  or  because  of  any  other 
fault  on  the  part  of  the  seller,  that  cir- 
cumstance should  not  work  a  hardship 
upon  the  broker,  who  may  have  spent 
much  effort  and  money  in  procuring  the 
sale,  and  his  commissions  are  due  and 
payable  the  same  as  they  would  have 
been  if  the  title  was  satisfactory. 


178    THE  LAW  OF  REAL  ESTATE 

When  Agent  is  Not  Entitled  to  Com- 
missions.— Where  a  clause  is  added  to 
the  agent's  contract  to  the  effect  that  he 
is  to  receive  his  commissions  out  of  the 
first  moneys  paid  by  the  purchaser  to  the 
owner,  the  courts  have  decided  that  he 
cannot  recover  his  fees  until  and  unless 
such  moneys  are  actually  paid.  Such  a 
clause  is  to  be  found  in  many  contracts. 
The  agent  might  produce  his  customer, 
ready,  able,  and  willing  to  purchase, 
but,  under  such  a  clause  in  his  agree- 
ment with  the  owner,  if  the  latter  re- 
fused to  complete  the  sale  the  agent 
could  not  recover  any  compensation 
whatsoever,  for  the  reason  that  his  con- 
tract says  his  commissions  are  to  be  paid 
out  of  the  first  moneys  received  by  his 
principal;  therefore,  if  none  are  received 
by  his  principal,  there  would  be  none  to 
pay  the  agent  out  of. 

In  a  decision  on  this  point  the  court 
said : 

"It  tends  to  show  an  agreement  to  pay 
commissions  out  of  the  first  moneys  re- 
ceived, and  no  money  has  ever  been  re- 
ceived. Under  such  a  contract  the 
broker  is  not  entitled  to  compensation 
when  he  finds  a  purchaser  ready,  able, 
and  willing  to  purchase    on    the     pres- 


THE  LAW  OF  REAL  ESTATE  179 

cribed  terms.  There  must  be  an  actual 
sale,  and  a  first  payment,  to  entitle  him 
to  recover.  It  is  so  nominated  in  the 
contract." 

The  same  rule  would  apply  to  con- 
tracts which  stipulate,  as  some  do,  that 
the  commission  is  due  and  payable  as 
soon  as  the  title  passes. 

Agent  Must  Either  Bring  Buyer  and 
Seller  Together  or  Else  Procure  Signed 
Agreement  to  Purchase. — A  leading  case 
in  the  law  reports  shows  that  the  agent 
procured  a  purchaser  who  agreed  ver- 
bally to  buy  the  property  offered,  and 
deposited  part  of  the  purchase  price.  The 
agent  informed  his  principal  of  what  he 
had  done,  which  was  satisfactory,  but 
never  brought  the  parties  together.  The 
title  proved  defective,  however,  and  the 
deal  fell  through.  The  agent  then  sued 
for  his  commissions.  The  following  syn- 
opsis of  the  decision  illustrates  the  rule, 
several  times  stated  heretofore,  that  the 
agent  must  bring  the  parties  together 
face  to  face,  or  else  must  present  to  the 
owner  a  valid  and  enforceable  contract 
of  purchase,  signed  by  the  proposed 
buyer: 

The  undertaking  of  the  agent  is  to 
negotiate    a    sale;   that   is,  to  procure   a 


180    THE  LAW  OF  REAL  ESTATE 

valid  agreement  to  purchase  from  the 
buyer,  which  can  be  enforced  by  the 
vendor  if  his  title  is  perfect.  This  un- 
dertaking on  the  part  of  the  agent  is 
complete  when  he  delivers  or  tenders  to 
the  owner  a  valid  written  contract,  con- 
forming to  the  terms  of  sale  agreed  on, 
signed  by  a  party  able  to  comply  there- 
with, or  able  to  answer  in  damages  if  he 
should  fail  to  perform. 

But  the  necessity  of  a  written  contract 
of  purchase  may  be  rendered  unneces- 
sary if  the  agent  bring  the  buyer  and 
seller  together,  and  the  latter  is  able  and 
willing  and  offers  to  complete  the  con- 
tract. 

In  either  case  the  agent  has  done  all 
that  he  can  do,  and  if  the  vendor  under 
such  circumstances  refuses  to  complete 
the  sale,  he  nevertheless  will  be  com- 
pelled to  pay  the  agent  his  commission. 
The  object  of  the  vendor  is  to  effect  a 
sale  of  his  property,  and  when  the  bro- 
ker produces  a  contract  executed  by  a 
solvent  purchaser,  or  in  lieu  of  a  con- 
tract produces  the  purchaser  in  person, 
he  is  then  entitled  to  pay  for  his  ser- 
vices, whether  the  trade  is  finally  con- 
summated or  not,  because  if  the  vendee 
refuses  to  take  the  property,  after  hav- 


THE  LAW  OP  REAL  ESTATE  181 

ing  signed  an  agreement  to  do  so,  the 
vendor  has  a  right  of  action  against  him 
for  all  damages  which  he  may  sustain 
by  such  refusal,  including  the  commis- 
sions which  he  would  be  compelled  to 
pay  to  the  agent. 

On  the  other  hand,  it  being  the  duty 
of  the  agent  to  either  produce  his  cus- 
tomer in  person,  or  his  written  agree- 
ment, he  has  not  fulfilled  the  conditions 
of  his  employment  until  he  does  one  or 
the  other;  and  as  the  right  of  the  agent 
to  commissions  depends  upon  perform- 
ance of  his  part  of  the  contract,  in  the 
case  in  hand  it  was  decided  that,  as  he 
had  not  done  either,  the  contract  of  pur- 
chase being  only  a  verbal  one,  he  was 
not  entitled  to  recover  for  his  services. 
The  fact  that  a  deposit  was  made  at  the 
time  to  bind  the  bargain  did  not  afifect 
the  case  one  way  or  the  other. 

Extension  of  Time. — Where  an  agent 
is  granted  a  further  time  in  which  to  find 
a  purchaser,  it  is  just  as  necessary  that 
the  extension  should  be  in  writing  as  it 
is  that  the  original  agreement  or  con- 
tract should   be. 

Exclusive  Agency. — Where  the  agent 
is  given  the  exclusive  agency  to  sell 
property,  he  will  be  entitled  to  his  com- 


182         THE  LAW  O^   REAL  ESTATE 

missions  whether  the  sale  is  made  by 
him,  or  by  the  owner,  or  by  any  other 
person.  It  matters  not  whether  the 
agent  has  made  any  progress  towards 
securing  a  purchaser  or  not,  the  fact  that 
his  contract  gives  him  the  exclusive 
right  to  do  so  within  a  specified  time  is 
sufficient  to  protect  him  against  any  in- 
terference with  that  right.  The  owner 
cannot  be  deprived  of  the  privilege  of 
selling  his  property  himself,  but  if  he 
does  so  while  under  an  exclusive  con- 
tract with  the  agent,  unless  specially 
exempted  in  the  agreement,  he  will  be 
liable  to  the  agent  for  commissions  just 
the  same  as  if  the  agent  made  the  sale 
himself.  The  owner  by  selling  deprives 
the  agent  of  the  opportunity  to  do  so, 
thus  disabling  him  by  nullifying  what- 
ever effort  he  may  have  made,  or  ex- 
pense he  may  have  incurred. 

EXTENT  OF  AGENT'S  AUTHOR- 
ITY 

Governed  by  the  Contract. — The  or- 
dinary authority  conferred  upon  the  real 
estate  agent  is  to  find  a  purchaser.  He 
cannot  bind  his  principal  by  a  contract 
of  sale  unless  specially  authorized  to  do 
so  in  his  contract  of  employment.     And 


THE  LAW  OF  REAL  ESTATE  183 

under  no  circumstances  can  he  execute 
a  deed  or  grant  of  the  property  unless 
he  has  either  a  special  or  general  power 
of  attorney  for  the  purpose. 

REVOCATION   OF  AGENCY 

Power  and  Liability  of  Owner. — As  a 

general  rule  the  owner  has  the  power  to 
revoke  the  authority  of  the  agent  at  his 
will.  But  the  judgment  of  the  courts 
seems  to  be,  that  while  he  has  the  power 
to  revoke,  he  cannot  do  so  in  violation 
of  his  contract  without  incurring  liabil- 
ity therefor.  AA^here  the  owner  agrees 
in  waiting  with  the  agent  that  the  latter 
shall  have  a  specified  number  of  days  or 
months  in  which  to  find  a  purchaser,  he 
can  be  held  liable  for  any  loss  incurred 
by  the  agent  by  reason  of  the  revocation 
of  the  agency  during  said  time.  In  other 
words,  in  making  such  a  contract,  the 
owner  impliedly  agrees  that  he  will  sus- 
pend his  right  to  revoke  the  agency  for 
a  certain  length  of  time,  and  for  the  vio- 
lation of  such  an  agreement  he  is  as 
much  liable  as  for  the  breach  of  any 
other  contract. 

The  agency  is  also  revoked  by  the  sale 
of  the  property,  or  by  the  death  of  either 
the  principal  or  the  agent. 


184    THE  LAW  OF  REAL  ESTATE 

Return  of  Deposit  by  Agent. — The 
agent  who  is  acting  simply  as  the  agent 
of  the  owner  on  commission  should 
never  return  a  deposit  on  the  sale  of 
property  without  the  consent  of  the 
owner.  The  intending  purchaser  may 
claim  that  the  title  is  defective,  or  that 
there  has  been  misrepresentation,  or  for 
some  other  reason  demand  his  deposit 
back,  but  the  agent  has  no  right  to  be 
the  judge  in  such  matters.  When  he 
takes  the  deposit  he  holds  it  simply  as 
the  agent  for  his  principal,  subject  to 
his  orders,  and  if  he  should  return  it,  and 
the  owner  should  suffer  loss  thereby,  the 
agent  would  be  responsible  to  him  in 
damages  to  the  extent  of  such  loss. 

Excess  Over  Fixed  Price  as  Commis- 
sion.— A  contract  of  employment  by  the 
terms  of  which  the  agent  is  to  retain  as 
commission  for  his  services  all  the  ex- 
cess which  he  obtains  from  the  purchaser 
over  and  above  the  price  set  by  the 
vendor  is  legitimate  and  valid. 

Form  of  Contract  for  Employment  of 
Agent. — Contracts  of  employment  of 
agents  to  sell  or  exchange  real  property 
may  take  innumerable  forms.  From  the 
one  which   follows  by  changing  the   de- 


THE  LAW  OF  REAL  ESTATE  185 

tails,  one  can  be  made  up  to  suit  almost 
any  purpose. 

The  contract  can  be  made  exclusive, 
or  non-exclusive. 

It  may  be  confined  strictly  to  a  time 
limit  in  which  to  make  the  sale. 

It  may  provide  that  the  commission 
shall  be  all  the  excess  obtained  by  the 
agent  over  a  certain  amount. 

It  may  reserve  the  privilege  to  the 
owner  of  making  a  sale  without  being 
bound  for  the  commission. 

It  may  provide  for  a  flat  commission 
of  so  many  dollars. 

It  may  eliminate  the  exchange  portion 
if  not  desired  to  exchange. 

In  short,  any  conditions  agreed  upon 
may  be  inserted,  having  due  regard  to 
the  laws  as  set  forth  in  this  article,  care 
being  taken  to  preserve  the  general  form 
of  language  and  the  specific  promises  to 
pay  and  perform. 

If  the  seller  is  a  corporation,  the  au- 
thority of  the  agent  must  be  by  virtue  of 
a  resolution  of  the  board  of  directors. 
The  officers,  as  such,  have  no  power  to 
dispose  of  the  property  of  the  corpora- 
tion without  being  authorized  so  to  do. 
It  is  incumbent  upon  the  agent  to  ascer- 
tain   if    his    contract  of    employment    is 


186    THE  LAW  OF  REAL  ESTATE 

properly  authorized;  otherv\ase  there 
could  be  no  recovery  for  his  services. 
See  the  same  subject  in  the  chapter  on 
"Contracts  of  Sale  of  Real  Property." 

CONTRACT   OF   EMPLOYMENT  OF  AGENT. 

I  HEREBY  AUTHORIZE  and  empower  the 
(Out  AVest  Realty  Company)  to  sell,  or  exchange, 
and  to  make  and  execute  in  my  name,  as  my 
sole  and  exclusive  agent,  a  contract  of  sale  or 
exchange  for  the  folloirving  described  lot,  piece, 
or  parcel  of  land,  situate,  lying  and  being  in  the 
(city  of  Redlands,  county  of  San  Bernardino, 
state  of  California),  and  more  particularly  de- 
scribed as  folloT\s,  to  ^vit: 
(Describe    property    sufficiently    to    identify    It.) 

Improvements     

Encumbrances    

Leases     

Saifl  sale  to  be  made  upon  the  follovring  terms 
and   conditions: 

(Here   insert   terms   In   detail.) 

And  in  case  the  said  (Out  AVest  Realty  Com- 
pany) shall  make  a  sale  or  exchange  of  the 
above  described  property,  upon  the  said  terms 
and  conditions,  I  agree  to  pay  tbem  a  commis- 
sion of  (five  per  cent)  on  the  first  one  thousand 
dollars,  and  (t^o  and  one-half  per  cent)  on  bal- 
ance of  amount  realized  from  said  sale  or  ex- 
change; and  In  the  event  of  a  sale  or  exchange 
of  said  property  by  said  (Out  West  Realty  Com- 
pany), at  a  less  or  greater  amount,  or  on  differ- 
ent terms  than  as  stated  above,  T\ith  my  consent 
I  agree  to  pay  tlie  same  commission  upon  the 
amount  received   as   agreed   upon    above. 

This  agreement  is  for  the  term  of  (four 
months)  from  date,  and  thereafter  until  it  is 
abrogated  or  vrithdraivn  in  ^vriting. 

All  expenses  of  advertising  said  property  to 
be    paid    by    ( ). 

I  also  agree,  Tvithin  (thirty  days)  after  a  eon- 
tract  of  sale  Is  made  according  to  the  terms 
hereof,  to  furnish  a  certificate  of  title  from  a 
reputable  abstract  company,  and  then,  upon  the 
fulfillment  of  said  terms  and  conditions,  to  exe- 
cute   and    deliver   to    the   purchaser,   his    assigns 


THE  LAW  OF  REAL  ESTATE  187 

or   representatives,   a    i^uod    and   sufficient    grant 

deed  of  said  property. 

I  am  tlie  owner  of  said  property. 

(Signature     ) 

(Address     > 

(Dated   at    ) 

Form  of  Employment  of  Agent  and 
Agreement  of  Exchange. — The  following 
form  authorizes  the  employment  of  the 
agent  in  negotiating  the  exchange,  pro- 
vides also  for  the  acceptance  of  the  offer, 
and  payment  of  commissions.  There 
may  be  witnesses  or  not,  as  the  parties 
choose.  It  is  better  to  write  the  accept- 
ance on  the  same  paper  as  the  offer,  al- 
though it  may  be  on  a  separate  sheet. 
The  agreement  to  pay  commissions  may 
be  in  a  separate  instrument  also,  if  de- 
sired, but  it  must  state  very  definitely 
the  particular  transaction  and  the  terms 
upon  which  the  commissions  are  to  be 
paid. 

In  the  absence  of  any  agreement  to  the 
contrary,  it  is  usually  lawful  for  the 
agent  to  demand  commissions  from  both 
parties  to  an  exchange. 

AGREEMENT  FOR  EXCHANGE  OP  REAL 

ESTATE 
THIS  AGREI3MENT  witnessetli:  That  (I  Ja- 
cob Jackson),  am  tlie  owner  of  the  following 
described  first  piece  of  property,  situate,  lying 
and  being  In  the  (city  of  Monrovia,  county  of 
Los  Angeles,  state  of  California),  and  more  par- 
ticularly described  as  follows,  to  wit: 

(Give  description  here,  same  as  in  deed), 


188    THE  LAW  OF  REAL  ESTATE 

T\-hlch  I  desire  to  exchange  for  the  follo-vrlng 
described  secoud  piece  of  property  owned  by 
(Jereniiah  Johnson),  situate,  lying  and  being  in 
the  (city  of  Conipton,  county  of  Los  Angeles, 
state  of  California),  and  more  particularly  de- 
scribed  as   follows,   to   wit: 

(Here    describe    second    piece    of    property    suffi- 
ciently to   identify  it), 
upon   the  teruis    aud   conditions   as   set   forth   be- 
low, to  wit: 

(Here    set    forth    in   detail   the   terms    of    the   ex- 
change.) 

Messrs.  (AVoodrow  &  \Vilson)  are  hereby  au- 
thorized to  act  as  my  agents  in  negotiating  an 
exchange,  and  I  hereby  agree  that  if  they  shall 
secure  an  acceptance  of  the  proposition  to  ex- 
change the  above  described  property  on  the 
above  terms  that  1  will,  within  (thirty  days) 
thereafter,  furnish  a  certificate  of  title  from  a 
reputable  abstract  company,  showing  the  said 
property  to  be  free  and  clear  of  all  encumbrance, 
except  (state  encumbrance  here,  if  any),  and 
then  execute  and  deliver  a  good  and  sufficient 
grant  deed  conveying  title  to  the  property  first 
above  described  to  the  said  (Jeremiah  Johnson), 
his  assigns  or  representatives.  I  also  agree  to 
allow  a  reasonable  time  for  the  furnishing  of  a 
certificate  of  title  of  the  second  of  the  above 
described  properties,  and  a  good  and  sufficient 
grant    deed    conveying   the   same. 

And  it  is  further  agreed  with  said  (Woodro^r 
&  Wilson)  that  w^hen  they  have  secured  an  ac- 
ceptance of  the  proposition  to  exchange  the 
above  described  property  on  the  above  terms, 
I  will  then  pay  them  the  sum  of  (so  many  dol- 
lars) as  commission  aud  compensation  for  such 
services. 

(Signature ) 

(Dated  at    ) 

ACCEPTANCE    OF    OFFER    TO    EXCHANGE 
PROPERTY. 

THIS  AGREEMENT  witnesseth:  That  (Jere- 
miah Johnson)  owner  of  the  second  piece  of 
property  described  in  the  within  Instrument, 
hereby  accepts  the  proposition  of  exchange 
made  therein,  and  upon  the  terms  and  conditions 
stated  therein,  and  agrees,  within  (thirty  days), 
to  furnish  a  certificate  of  title  from  a  reputable 
abstract   company,  showing  the  said  property  to 


THE  LAW  OF  REAL  ESTATE  189 

be  free  and  clear  of  all  encumbrance,  except 
(Ntate  encumbrance  here,  If  any>  and  then,  upon 
the  fulfillment  of  said  ternis  and  conditions,  to 
execute  and  deliver  a  ^rood  and  sufflcient  grant 
deed  of  said  property  to  the  said  (Jacob  Jack- 
son),  his   assigns  or  representatives. 

And  I  further  agree  to  pay  Messrs.  (AVoodrovr 
&  AV'ilson)  the  sum  of  (so  many  dollars)  as 
commission  and  compensation  for  their  services 
In   making  said   exchange. 

(  Signature ) 

(Dated  at ) 


INDEX 


CHAPTER    I. 
WHAT   IS   REAL,  PROPERTY. 

Civil   code  definition,  page   5. 

What   is   land,    5. 

Minerals,    oils,    gases,    8. 

Alluvion,    avulsion,    9. 

Islands,   10. 

Trees  on  property   line,   10. 

Things  affixed  to  land,   12. 

Growing  crops,    13. 

Houses,   barns,   sheds,   etc.,   16. 

Fixtures,   19. 

Things  appurtenant  to  land,  25. 
CHAPTER    II. 
OW  NERSHIP  AXD   CONTROL,   OF  REAL.  PROP- 
ERTY. 

Property  rights  of  husband  and  wife,   27. 

What   is   husband's  separate  property,   28. 

What    is    wife's    separate    property,    28. 

Community  property,  30. 

Management  and  control  of  community  pro- 
perty,  30. 

Conveyance  of  separate  and  community  pro- 
pertj^    31. 

Necessity    of     wife's     signature    to     convey- 
ance, 32, 

Holding  property  as  joint  tenants,  33. 
CHAPTER    III. 
CONTRACTS    OF    SALE    OF    REAL    PROPERTY. 

]Must  be  In  writing,  37. 

Contract    by   corporation,    42. 

Contract   by  minor,   43. 

Sale   of   wife's  property  by   husband,   44. 

Construction    of   contract,    45. 

Form  for  contract,   for  cash,   47. 

Form   for   contract,   for  part   cash,   50. 

Form  for  contract,  with  mortgage,  52. 

Form   for   contract,    on    installments,    57. 

Form    for    contract,    by    corporation,    54. 

Form  for  contract,   option,   61. 


INDEX  191 

Forms  for  assignment  of  contract,   65. 

Form   for   contract   of   exchange,   66. 

Form    for    acceptance    of    agreement    of    ex- 
change,   68. 

Contract     binds     seller     to     execute     convey- 
ance, 62. 

Recording   contract,    63. 

Assignment   of   contract,    64. 
CHAPTER    IV. 
TRANSFER  OF  REAL.  PROPERTY. 

Description  of  property,  70. 

Consideration,   71. 

Warranty,   72. 

Form   for   grant   deed,   code,    74. 

Form   for   grant,   bargain   and   sale   deed,    74. 

Form  for  warranty  deed,   7.^. 

Form  for  quitclaim  deed,   77. 

Form   for  deed   of  gift,   78. 

Form  for  deed  by  corporation,   79. 

Form   for  joint   tenancy   deed,   right   of   sur- 
vivorship,  80. 

Forms   for  restrictions  in   deed,    83. 

Form   for  power   of  attorney,   92. 

Form  for  revoking  power  of  attorney,  93. 

Forms  for  acknowledgment  of  deeds,   87,   88. 

Acknowledgment  of  instruments,  85. 

Recording   deed,   89. 

Power   of  attorney   to   make  transfer,   90. 

Deed  by  minor,   94. 

Witnesses   to  deed,   94. 

Seals,  95. 

CHAPTER  V. 
LANDLORD  AND  TENANT. 

When   lease  must  be  in  writing,   98. 

Lease  by  agent,   99. 

Lease  by  minor,   100. 

liimit   of   term   of   lease,   100. 

Computing  term   of  hiring,   101. 

Payment  of  rent,   102. 

Default  in  rent,   103. 

Raising  the  rent,   103. 

Renewal    of  hiring,    106. 

Renewal  of  lease,   107. 

T'^rmination    of  lease,   113. 

How  lease  may  be   terminated,   114. 

Termination  of  hiring,  117. 

Penalties  and  damagts,    123. 

Demanding    possession    of    leased    premises, 
124. 

Surrender   of  lease,   126. 


192  INDEX 

Forfeiture  of  lease,  126. 

Unlawful    detainer,    130. 

Form  for  notice  of  raisin?  rent.   lo5. 

Form  for  notice  to  pay  rent,  127. 

Form    for   notice    to   perform    covenants,    128. 

Form   for   landlord's   notice   to   quit,    119. 

Form  for  tenant's  notice  of  intention  to  quit, 

120. 
Form    for    notice    demanding    possession    at 

end   of   term,    125. 
Form  for  lease,   144. 
Forms  for  covenants  in  lease,  146. 
Form   for  farm   lease,    157. 
Forms  for  assigrnment  of  lease,   157. 
Manner  of  serving  notices,   131. 
Use   of  force   in   eviction,    132. 
Duty    of    tenant    to   notify    landlord,    133. 
Effect    of    change    of    ownership      of      leased 

premises,    133. 
Payment   of   taxe?.    134. 
Removal   of   fixtures,   134. 
Repairs,    136. 
Nuisances,   140. 
Waste,   141. 
Leases,  142. 

Lease  by  corporation,   152. 
Recording  lease,   152. 
Assignment    of   lease,    154. 
Subletting  lease,   158. 
Witnesses   to  lease,   161. 
Seals,   161. 

CHAPTER    VI. 

REAIi   ESTATE   AGENTS. 

Contract  of  employment  must  be  in  writing, 
164. 

Contracts  between   agents,   168. 

'^"hen   agent   is  entitled  to  commissions,   169. 

When  agent  is  not  entitled  to  commissions, 
178. 

When  must  bring  buyer  and  seller  together, 
179. 

Extension  of  time   to   find  purchaser,   181. 

Exclusive   agency,   181. 

Extent   of   agent's   authority,   182. 

Revocation    of   agency,    183. 

Form   for  contract   of   employment,    186. 

Form  for  agreement  of  exchange,  187. 

Form  for  acceptance  of  agreement  of  ex- 
change,   188. 


B     000  018  827     6 


